On August 6, 2026, Justice Walsh of the Westchester County Commercial Division issued a decision in Gonzalez v. Marte, 2026 NY Slip Op. 51244(U), dismissing a motion for summary judgment in lieu of complaint due to short service, explaining:
Critically, CPLR 3213 provides that 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. CPLR 320(a) provides that an appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant pursuant to section 303, subdivision two, three, four or five of section 308 then the appearance shall be made within thirty days after service is complete. Service is deemed complete 10 days after an affidavit of service is filed with the county clerk, thus, if the Defendant is a natural person who is served pursuant to CPLR 308(2) or CPLR 308(4), the minimum amount of time between service of the summons and motion papers and the return date is forty days.
Failure of a party moving for summary judgment in lieu of a complaint to set an appropriate return date which falls before the responding party is statutorily required to appear has been characterized as short service. Short service of a motion for summary judgment in lieu of complaint has been treated by the Appellate Division, Second Department as a fatal jurisdictional defect requiring denial of the motion and dismissal of the action without prejudice. Such an approach exists due to both the dual motion-action nature of CPLR 3213 motions and to protect the due process rights of defendants.
However, short service of a motion for summary judgment in lieu of complaint may be cured in certain scenarios. For example, in Blue Lagoon, LLC (214 AD3d 938), the Second Department considered a CPLR 3213 motion where the original return date was set earlier than the defendant was statutorily required to appear in the action. There, the return date of the plaintiff’s motion was administratively adjourned several times. The Court further provided that 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. Therefore, the Court held that 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. In another case, Plaza 400 Owners Corp. (168 Misc 2d 837), the plaintiff set a return date which fell before the defendant was required to appear. While the Civil Court recognized that a short-served motion, when submitted on default, should be denied, it asserts that short service has been viewed as a nonfatal irregularity if the opponent mailed a response before the return date and found that the same applied in that case. In the instant action, there have been no such adjournments, nor has Defendant filed opposition to Plaintiff’s motion or otherwise made an appearance.
Here, to support Plaintiff’s contention that Defendant was properly served with the Notice of Electronic Filing, Summons, Notice of Motion for Summary Judgment in Lieu of Complaint, Plaintiff’s Memorandum of Law, along with its supporting papers, Plaintiff filed two affidavits of service. As his first attempt, Plaintiff’s process server, Carlos Diaz, attempted service pursuant to CPLR 308 at Defendant’s last known residence, 513 W 159th St, Apt 5A, New York, NY 10032, but indicated that he was unable with due diligence to find Defendant or a person of suitable age and discretion thereat, having called there on May 12, 2026 at 7:45 a.m. and May 11 at 7:15 p.m. and leaving a copy of the same at the Defendant’s last known residence. Thereafter, Plaintiff’s process server mailed a copy of the same to Defendant’s last known residence in accordance with CPLR 308(4). However, the Second Department has routinely held that service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) or (2) cannot be made with ‘due diligence and that the requirement of due diligence must be strictly observed. While not expressly defined, the due diligence requirement may be met through a process server’s several attempts “at times when [the defendant] could reasonably have been expected to be found there, including attempts on a late weekday evening, an early weekday morning, a weekend evening, and a weekday afternoon. In this action, Plaintiff’s process server’s two attempts at times when Defendant could reasonably be expected to be in transit to or from work during the week—and absent an attempt on the weekend—is insufficient to meet CPLR 308’s due diligence requirement as to the first affidavit of service.
In contrast, Plaintiff’s second affidavit of service demonstrates sufficient compliance with CPLR 308(2) through his process server’s in-hand delivery of the Notice of Electronic Filing, Summons, Notice of Motion for Summary Judgment in Lieu of Complaint, Plaintiff’s Memorandum of Law, along with its supporting papers at 261 Dyckman Street, New York, NY 10034 upon Julia Gomez, an employee of Bravo 56 Bar & Grill and a person of suitable age and discretion, who represented that the Defendant owned and operated the business. Subsequently, Plaintiff’s process server mailed a copy of the same documents to 261 Dyckman Street, New York, NY 10034 in the manner prescribed in CPLR 308(2).
Plaintiff filed the second affidavit of service on May 28, 2026. CPLR 3213 requires that Plaintiff set a minimum time that Plaintiff’s motion shall be noticed to be heard as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. As Plaintiff’s process server effectuated service under CPLR 308(2) by serving a person of suitable age and discretion at Defendant’s actual place of business, CPLR 320(a) requires that Defendant make an appearance within thirty days after service is complete. Service is marked complete 10 days following the filing of the affidavit of service, thus, Plaintiff must have provided a minimum time for Defendant to make an appearance of at least 40 days from May 28, 2026 or, in other words, set a minimum return date or deadline for filing answering papers for July 7, 2026.
In this case, Plaintiff set the return date for May 29, 2026, and required service of answering papers or any notices of cross-motion from Defendant 10 days prior to that date. Since Plaintiff requested service of answering papers 10 days prior to May 29, 2026, or by May 19, 2026, Plaintiff short-served his motion for summary judgment in lieu of complaint by at least 49 days. Unlike in the cases of Blue Lagoon, LLC (214 AD3d 938) or Plaza 400 Owners Corp. (168 Misc 2d 837), there have been no administrative or stipulated adjournments of the motion’s return date or Defendant’s time to file responding papers, nor has Defendant filed responding papers such that due process considerations would not be implicated. Therefore, because Plaintiff short-served his motion for summary judgment in lieu of complaint, the Court lacks personal jurisdiction over Defendant.
Accordingly, because the Court lacks personal jurisdiction over Defendant, Plaintiff’s motion for summary judgment in lieu of complaint is hereby denied and the action dismissed without prejudice.
(Internal quotations and citations omitted).