On March 29, 2023, the Second Department issued a decision in Blue Lagoon, LLC v. Reisman, 2023 NY Slip Op. 01657, holding that the Governor’s COVID orders tolled the time to respond to a motion for summary judgment in lieu of complaint, explaining:
CPLR 3213 provides that when an action is based upon an instrument for the payment of money only the plaintiff may serve with the summons a notice of motion for summary judgment and supporting papers in lieu of a complaint. CPLR 3213 further states that 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.
Under CPLR 3213, the defendant, instead of serving an appearance and answer, serves and files papers in opposition to the summary judgment motion on or before the date specified in the notice of motion. The opposition papers qualify as an appearance. This is because the procedure of CPLR 3213 is, in effect, a motion-action akin to a special proceeding under CPLR Article 4, where the petition and its answer may oftentimes be decided in an expedited manner upon the papers submitted.
Under CPLR 320(a), an appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant under subdivision two, three, four or five of section 308 the appearance shall be made within thirty days after service is complete.
Here, Elias Reisman was personally served with process under CPLR 308(1) on March 13, 2020. Thus, under CPLR 3213, the earliest date by which he could have been required to file answering papers to the plaintiff’s motion was April 2, 2020, 20 days after service upon him was complete. Similarly, on March 18, 2020, the plaintiff filed proof of service upon Peshe Reisman, which established that Peshe Reisman was served via a person of suitable age and discretion pursuant to CPLR 308(2). As such, the earliest date by which Peshe Reisman could have been required to file answering papers to the plaintiff’s motion was April 27, 2020, 30 days after completion of service of process upon her. Despite this, the plaintiff’s motion had an original return date of March 24, 2020, which did not provide the defendants with sufficient time under CPLR 320(a) and 3213 to file answering papers.
However, neither defendant disputes receiving the summons and original notice of motion and supporting papers sent to them by first-class mail in November 2019. Moreover, the defendants’ affidavits establish that they were on notice of the plaintiff’s motion, as both defendants averred that they had continuously checked the eCourts website, and were aware that the plaintiff’s motion had been adjourned on numerous occasions. To the extent that the plaintiff’s original notice of motion for summary judgment in lieu of complaint provided inadequate time within which the defendants could file answering papers, the plaintiff filed an amended notice of motion for summary judgment in lieu of complaint, of which the defendants do not deny service. Thus, under the particular circumstances of this case, the plaintiff’s failure to provide an adequate return date on its original notice of motion was not a fatal defect that deprived the Supreme Court of jurisdiction over the action.
However, the defendants established that on the date that the Supreme Court decided the plaintiff’s motion for summary judgment in lieu of complaint, the time by which the defendants were required to appear and file answering papers to the motion had not lapsed. On March 20, 2020, on which date the time for the defendants to file answering papers had not lapsed, former Governor Andrew M. Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which provided: “I hereby temporarily suspend or modify, for the period [of] the date of this Executive Order through April 19, 2020 the following: In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to . . . the civil practice law and rules . . . is hereby tolled from the date of this executive order until April 19, 2020” (emphasis added). The former Governor issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020.
In Brash v Richards, this Court determined that Executive Order 202.8 and the subsequent executive orders acted to toll those specific time limits contained in the CPLR and listed in the executive orders. Executive Order 202.8 and the subsequent executive orders appear to apply to the service of the notice of appearance, but do not expressly apply to toll the defendant’s time to serve an answer. However, given the hybrid nature of the motion-action under CPLR 3213, in which the filing of answering papers is akin to the service of a notice of appearance or an answer, combined with the desire to preserve the status quo for litigants during the COVID-19 pandemic, under Executive Order 202.8 and the subsequent executive orders, neither defendant was required to appear and file answering papers.
Accordingly, the Supreme Court should have granted the defendants’ motion to vacate the judgment, allowed the defendants to submit answering papers to the plaintiff’s motion for summary judgment in lieu of complaint, and then made a new determination of the plaintiff’s motion.
(Internal quotations and citations omitted).