MASHANTUCKET PEQUOT GAMING ENTER. v. PING LIN
v.
PING LIN, Defendant.
Supreme Court, Kings County.
Andrew J. Bayne, Esq., 230 Park Avenue, Suite 1000, New York, NY 10169, (212) 679-2205, Attorney for Plaintiff.
FRANCOIS A. RIVERA, J.
By notice of motion filed on January 13, 2011, Mashantucket Pequot Gaming Enterprise (hereinafter MPGE or plaintiff) moves pursuant to C.P.L.R. 3213 for summary judgment in lieu of complaint against defendant Ping Lin. Defendant, Ping Lin, did not appear or submit opposition to the motion.
BACKGROUND
On January 13, 2011, MPGE filed the instant motion for summary judgment in lieu of complaint with the Kings County Clerk's office. The instant motion is to collect a money judgment of the Mashantucket Pequot Trial Court. The affidavit of MPGE's collection manager, Norberto Gonzalez Jr., alleges the following facts. On July 22, 2007, MPGE approved defendant's application for a line of credit in the amount of $60,000.00 for use at a casino it managed. On December 7 and 9, 2007, the defendant used the full value of the $60,000.00 line of credit by signing "markers" drawn from Citibank, Las Vegas, Nevada. MPGE honored the "markers" and presented them to Citibank for payment and Citibank dishonored the payments due to insufficient funds. On November 25, 2008, MPGE filed a complaint against the defendant at the Mashantucket Pequot Tribal Court based on defendant's failure to pay the loan. On December 4, 2008, MPGE served the complaint on the defendant. MPGE obtained a default judgment based on defendant's failure to appear or answer the complaint before the Mashantucket Pequot Tribal Court.
MOTION PAPERS
Plaintiff's motion consists of the summons, the notice of motion for summary judgment in lieu of complaint, the affidavit of service of these documents, an affirmation of plaintiff's counsel, and an affidavit of plaintiff's collection manager. The affidavit of plaintiff's collection manager references five annexed exhibits. Exhibit 1 is described as the defendant's credit application. Exhibit 2 is described as documents from Citibank, Las Vegas, Nevada. Exhibit 3 is described as a complaint with the Mashantucket Pequot Tribal Court. Exhibit 4 is described as a summons and an affidavit of service of the complaint with the Mashantucket Pequot Tribal Court. Exhibit 5 is described as a judgment of the Mashantucket Pequot Tribal Court.
SERVICE OF THE MOTION
On January 21, 2011, Juan Pereira, MPGE's process server, (Pereira) signed an amended affidavit of service of the instant motion before a notary public. The amended affidavit alleges service of the summons, notice of motion for summary judgment in lieu of complaint, and other papers on the defendant's residence as follows. The first attempt at service was made on Friday, January 7, 2011 at 2:43 p.m.; the second was made on Saturday, January 8, 2011 at 9:21 p.m.; and the third attempt was made on Monday, January 10, 2011 at 10:05 a.m. Periera then affixed a copy of the summons, notice of motion for summary judgment in lieu of complaint, and other papers on the door of the residence on January 10, 2011 at 10:05 a.m. The same day he sent the papers by first class mail addressed to the defendant at the same address that he affixed the papers to the door. On January 21, 2011, MPGE filed the amended affidavit of service with the Kings County Clerk's office.
APPLICABLE STATUTES
CPLR 308 sections 1, 2 and 4 provide in pertinent part as follows:
Personal service upon a natural person. Personal service upon a natural person shall be made by any of the following methods
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision [a] of section two hundred thirty-two of the domestic relations law.
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
CPLR 2214 (a) and (b) provides as follows:
Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.
CPLR 3213 provides as follows: Motion for summary judgment in lieu of complaint. When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion later than the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise.
DISCUSSION
"CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice" (Goldstein v. Saltzman, 13 Misc 3d 1023, 1025, 821 N.Y.S.2d 746, 747 [NY Sup. 2006]; citing Flushing Nat. Bank v. Brightside Mfg. Inc., 59 Misc 2d 108, 298 N.Y.S.2d 197 [Sup. Ct., Queens County 1969]). "As with a plenary action, jurisdiction is obtained over the defendant by serving the defendant with the summons, notice of motion and supporting papers in a method prescribed in CPLR Article 3. The minimum amount of time the plaintiff must give the defendant to oppose the motion for summary judgment in lieu of complaint is determined by the amount of time the defendant would have to appear in the action if the defendant had been served with a summons and complaint or summons with notice" (Goldstein at 1025). CPLR 3213 provides," The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service." Thus, in a CPLR 3213 motion, the minimum amount of time the plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service, (See generally, Siegel, New York Civil Practice, 4th Edition § 291).
If the defendant is a natural person who is served pursuant to CPLR 308[4] the minimum amount of time the between service of the summons and motion papers and the return date is forty days. CPLR 320 [a] gives a defendant served in this manner thirty days from completion of service to appear. Service is complete ten days after the affidavit of service is filed with the county clerk.
Pereira's amended affidavit of service, demonstrates that he served the defendant pursuant to CPLR 308[4]. MPGE completed service on January 31, 2010, ten days after the filing of the amended affidavit of service. Pursuant to CPLR 320[a], the defendant should have been give thirty days from January 31, 2010 to appear and oppose the instant motion.
Instead, MPGE made the instant motion returnable on February 23, 2011 and directed the defendant to serve answering papers upon it seven days before February 23, 2011. MPGE did not give the defendant the statutorily required time to appear and respond to the motion. A failure to give the defendant the statutorily mandated time to appear and answer a motion for summary judgment in lieu of complaint compels not only a denial of the motion but also a dismissal of the action (Malament v. Jong Kim, 22 Misc 3d 1110(A), 2008 WL 5517588 [NY Sup. 2008]; citing, Goldstein at 1027).
Therefore, MPGE's motion for summary judgment in lieu of complaint is denied and the action is dismissed.
The foregoing constitutes the decision and order of this court.