Opinion
652537/2020
08-10-2020
PIRAEUS BANK S.A., Plaintiff, v. Nikolaos NOTIAS, Defendant.
Holland & Knight LLP, New York, NY (Warren E. Gluck and Elliot A. Magruder of counsel), for plaintiff. No appearance for defendant.
Holland & Knight LLP, New York, NY (Warren E. Gluck and Elliot A. Magruder of counsel), for plaintiff.
No appearance for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8 were read on this motion to/for SUMMARY JUDGMENT IN LIEU OF COMPLAINT.
Plaintiff, Piraeus Bank S.A., moves under CPLR 3213 for summary judgment in lieu of complaint to collect on an allegedly unpaid loan in the amount of $3,736,052.99 that Piraeus made to defendant, Nikolaos Notias. The motion is denied and the proceeding is dismissed for lack of personal jurisdiction.
When a party serves a summons and notice of motion for summary judgment in lieu of complaint, the summons "shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion." ( CPLR 3213.) And the "minimum time such motion shall be noticed to be heard"—that is, the minimum elapsed period from service of the summons and notice of motion until the return date given in the notice of motion—"shall be as provided by "subdivision (a) of rule 320 for making an appearance, depending upon the method of service." (Id. )
Here, plaintiff served the summons and notice of motion on defendant on July 9 and July 10, 2020, by the leave-and-mail method of CPLR 308 (2). Plaintiff filed its affidavit of service on July 15, 2020. (See NYSCEF No. 7.) The return date for the motion, therefore, could be set no earlier than 40 days from July 15, i.e. , August 24, 2020. (See CPLR 3213 ; CPLR 320 [a] ; CPLR 308 [2] ; see also Alpine Capital Bank v. Estate of Shiah , 2020 NY Slip Op 50587 [U], at *2 [Sup Ct, NY County May 20, 2020] [discussing this issue].) But plaintiff's notice of motion instead set a return date of July 27, 2020. (See NYSCEF No. 5.) Plaintiff failed to provide defendant with sufficient advance notice of the motion, and his obligation to file return papers, to satisfy the requirements of CPLR 320 and 3213. As a result, this court lacks personal jurisdiction over defendant. (See Segway of NY, Inc. v. Udit Grp., Inc. , 120 AD3d 789, 791-792 [2d Dept 2014] ; Estate of Shiah , 2020 NY Slip Op 50587 [U], at *2-*3.)
Plaintiff now acknowledges this defect in its motion papers. (See NYSCEF No. 8 at 1.) It contends, though, that its summons provided appropriate notice of defendant's obligation to respond to the motion for summary judgment. Plaintiff therefore requests leave to withdraw its motion for summary judgment and to refile that motion with an appropriate return date. (See id. ) The request is denied.
To begin with, it is not clear that plaintiff's summons included an appropriate deadline for defendant to respond. The summons directs defendant to respond to the summary-judgment motion "within 40 days after service of this summons." (NYSCEF No. 1.) This language is ambiguous as to whether the 40-day period to respond began running once plaintiff's process server sent defendant the follow-up mailing required by CPLR 308 (2) (which occurred on July 10, 2020), or once plaintiff filed the proof of service (which occurred on July 15, 2020). Only in the latter case would that period afford defendant sufficient notice.
Regardless, in the CPLR 3213 context it is the deadline set by the notice of motion , not the summons, that is relevant for jurisdictional purposes. Indeed, CPLR 3213 expressly provides that the summons shall require defendant to respond "within the time provided in the notice of motion." In Segway , the plaintiff's summons would have afforded defendant sufficient time to respond, but the notice of motion did not. (See 120 AD3d at 791.) The Appellate Division held that the plaintiff's failure in the notice of motion to provide defendant sufficient notice deprived the court of personal jurisdiction. The court therefore dismissed the proceeding. (See id. at 792.) That holding requires dismissal of this proceeding, as well.
See Br. for Defendant-Appellant, Segway of NY, Inc. v. Udit Grp., Inc. (2014 WL 7447782, at *7 [2d Dept Feb. 18, 2014] [quoting the summons] ).
Plaintiff requests, in the alternative, that this court deem the summary-judgment motion and its supporting papers to be a complaint and set a date for defendant to answer. (See NYSCEF No. 8 at 1.) Such an approach, however, is proper when a court denies a CPLR 3213 motion because the matter is not amenable to summary disposition—for example, because the action is not based upon an instrument for the payment of money only (see PDL Biopharma, Inc. v. Wohlstadter , 147 AD3d 494 [1st Dept 2017], or because the proceeding presents issues of fact (see Yerushalmy v. Resles , 159 AD3d 552 [1st Dept 2018].) Here, however, the problem is not that this court lacks a basis to decide plaintiff's claim at summary judgment under CPLR 3213, but that this court lacks (personal) jurisdiction to decide plaintiff's claim at all. In these circumstances, the proper disposition is not conversion of the CPLR 3213 proceeding to a plenary action, but dismissal of the proceeding altogether.
Accordingly, for the foregoing reasons it is hereby
ORDERED that plaintiff's summary-judgment motion under CPLR 3213 is denied and the proceeding is dismissed for lack of personal jurisdiction, no costs; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on defendant and on the office of the General Clerk, which is directed to amend its records accordingly.