On July 23, 2024, Justice Chan of the New York Commercial Division issued a decision in SD Stability SDIRA, LLC v. Maxben Holdings, LLC, 2024 NY Slip Op. 32556(U), holding that the return date for a motion for summary judgment in lieu of complaint must be after the defendant’s time to appear, explaining:
Defendant argues that the motion for summary judgment in lieu of complaint must be denied because plaintiffs failed to give defendant legally sufficient advance notice of the motion. The court agrees.
The minimum time for a motion for summary judgment in lieu of complaint to be noticed is the time provided by CPLR 320[a] for a defendant to make an appearance. CPLR 320[a], in turn, provides that a defendant’s appearance shall be made within 20 days after service of the summons unless service was made pursuant to a specifically enumerated CPLR provision. Here, service on defendant, a limited liability company, was effectuated under CPLR 311[a] and the 20·day period for defendant’s appearance after notice as provided in CPLR 320[a] applies.
A CPLR 3213 motion may not have a return date prior to when the defendant’s time to appear elapses. Making a motion returnable before the time to appear expires is a fatal jurisdictional defect. And courts may not overlook such defects.
In this case, service of the complaint was effectuated pursuant to CPLR 311(a) on defendant, a limited liability company. As such, the time for defendant to make an appearance, and the minimum time that the present motion must be noticed, is 20 days. There is no dispute that service of the motion papers on defendant occurred on March 21, 2024. Yet, as noted above, the motion’s return date of April 9, 2024, is only 19 days after service was complete. As a result, although plaintiffs contend that they would have filed an amended of notice of motion but for defendant’s filing of its attorney’s affidavit to contest the motion, it is nevertheless the case that plaintiffs made the motion returnable prior to the expiration of defendant’s time to appear. This clear and fatal jurisdictional defect plainly warrants dismissal for lack of jurisdiction.
To avoid this outcome, plaintiffs argues that an untimely return date is not a fatal jurisdictional defect. However, plaintiffs argue that Bhanti has been superseded by Blue Lagoon, LLC v Reisman. In Blue Lagoon, the Second Department found that although the return date on plaintiffs original CPLR 3213 motion was defective, defendant had notice of the motion, and the motion was adjourned several times. Critically, plaintiff subsequently amended its notice of motion for summary judgment in lieu of complaint, which, the Second Department found, afforded defendant sufficient time under CPLR 320 and CPLR 3213. Thus, plaintiffs’ contention that Bhanti was superseded by Blue Lagoon misses the mark. Unlike the plaintiff in Blue Lagoon, plaintiffs here only contemplated filing an amended notice of motion; they never effectuated that plan. Thus, there remains only plaintiffs’ defective notice.
Plaintiffs next contend that defendant is not prejudiced because defendant made a timely appearance, thus allowing the court to disregard the present jurisdictional defect. Plaintiffs quotes from ICICI Bank UK PLC Antwerp Branch v Manila to assert that where a defendant appears and opposes a motion the court may disregard the fact that the return date did not satisfy the time requirements set forth in CPLR 3213. Upon review of ICICI Bank, the ellipsis in plaintiffs’ quote omitted three critical words “on the merits.” Plaintiffs further cite cases in support of this proposition, however, these cases all involved an adjournment extending the previously noticed motion’s return date.Here, the parties did not stipulate to nor did defendant seek any extensions or adjournments, so this not an issue that needs addressing. While it is true that defendant opposed this motion; defendant’s only challenge goes to the lack of personal jurisdiction. Significantly, defendant did not oppose the motion on the merits. What remains is a defective notice of motion that did not give defendant sufficient time pursuant to CPLR 3213, which is a fatal jurisdictional defect requiring dismissal. The defective notice of the motion for summary judgment in lieu of complaint mandates dismissal of the motion.
(Internal quotations and citations omitted).