Opinion
Index No. 15030/2015
10-04-2022
Susan Richards, Plaintiff, v. Bayville Amusement Park, L.L.C. and BAYVILLE LAND ACQUISITIONS, L.L.C, JEKYLL & HYDE ENTERTAINMENT GROUP, INC., JEKYLL & HYDGE ENTERTAINMENT HOLDINGS, L.L.C and JEKYLL & HYDE, INC., Defendants.
Daniel Rausher Esq., Borgoras Law Group Counsel for plaintiff Kevin Westerman Esq., Attorney for defendant One Whitehall Street
Unpublished Opinion
Daniel Rausher Esq.,
Borgoras Law Group
Counsel for plaintiff
Kevin Westerman Esq.,
Attorney for defendant
One Whitehall Street
Odessa Kennedy, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:
Papers
Notice of Motion, Affirmations in Support 1-3
Upon review of the foregoing papers, it is hereby ordered that this motion is DENIED.
Defendants Bayville Park L.L.C. and Bayville Land Acquisitions L.L.C. (together, "Bayville") move for, among other things, an order pursuant to CPLR § 3126(3) dismissing the complaint and pursuant to Judiciary Law § 756 to hold plaintiff in contempt for violation and non-compliance with prior discovery orders of the Court.
"Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion and deprives the court of jurisdiction to entertain the motion." Zaidi v. New York Bldg. Contractors, Ltd., 61 A.D.3d 747, 748 (2d Dept 2009). Here, the affidavit of service for the instant motion filed by Bayville provides that service was effectuated on plaintiff's counsel by electronic means pursuant to CPLR § 2103(b)(7). CPLR § 2103(b)(7) authorizes service by electronic means "where and in the manner authorized by the chief administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the party's written consent." This is not an e-filed action and Bayville has not submitted any evidence of plaintiff's counsel's consent to service pursuant to CPLR § 2103(b)(7). Accordingly, this Court is without jurisdiction to entertain the instant motion.
The Court further notes that had it had jurisdiction of this motion, the Court would nevertheless be without jurisdiction to punish the plaintiff for civil contempt because Bayville's motion does not contain the warning and notice required pursuant to Judiciary Law § 756. See Judiciary Law § 756 ("the moving papers [seeking to punish for contempt] shall be served no less than ten and no more than thirty days before the time at which the application is noticed to be heard. The application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or type written in a size equal to at least eight point bold type"); Cmty. Pres. Corp. v. N. Blvd. Prop., LLC, 139 A.D.3d 889 (2d Dept 2016) ("Although the receiver's motion was in writing and complied with the 10-day notice requirement, it did not comply with the warning requirement. As such, the court was without jurisdiction to punish the appellant for contempt for failing to comply with its prior order"); Pizzirusso v. Grossman, 286 A.D.2d 428 (2d Dept 2001) ("The plaintiff's notice of motion, however, did not warn the appellant, as required by Judiciary Law § 756, that her failure to appear in court may result in her immediate arrest and imprisonment. Because the appellant did not waive the issue the Supreme Court was therefore without jurisdiction to punish the appellant for civil contempt").
The required legend under Judiciary Law§ 756 is as follows:
WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT.