On June 11, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Cityview Partners, LLC v. Lucas, 2024 NY Slip Op. 32011(U), holding that a motion to dismiss directed to the substance of the plaintiff’s claims could not be made when only a Summons with Notice had been filed, explaining:
It is well settled that a summons with notice is not a pleading and thus a motion to dismiss for the failure to state a cause of action cannot be entertained. Likewise, motions concerning long-arm jurisdiction may not be entertained. As the court explained in Fraley v Desilu Productions, Inc., 23 AD2d 79, 258 NYS2d 294 [1st Dept., 1965] without a complaint it is impossible to know whether plaintiff has a valid basis of jurisdiction under the long arm statute. Thus, the motion to dismiss is denied without prejudice. Where a motion filed is premature and cannot be decided, then the filing of another motion does not violate the single motion rule. Thus, the indefiniteness of the pleading precluded defendants from seeking dismissal of the fourth claim at that point, and thus the latest motion to dismiss did not contravene the single motion rule of CPLR 3211(e). Consequently, a motion to dismiss may be filed after a complaint has been served. The plaintiff’s request to deny such filing of any further motions to dismiss is denied.
However, the court may entertain any motion to dismiss which is not based upon the substance of any complaint, therefore, motions based upon inadequate service may properly be considered.
The defendant Lucas argues that service of the summons and complaint in this lawsuit was improper because it was served upon an employee of defendants place of employment and that such service is improper. However, this court explicitly permitted the service upon Lucas at the address noted in an order dated January 30, 2024 by February 23, 2024. Evidence presentend demonstrates that service was effectuated by that date. Consequently, the motion seeking to dismiss the action based upon improper service only as to Lucas is denied.
Turning to defendant Brown, the order noted permitted service upon Brown at a residence in California and at the employment locations of the other defendants. Even assuming the propriety of service at locations that have no connection to Brown, the evidence submitted demonstrates that service was never effectuated upon Brown within the time allotted by the order. Consequently, jurisdiction was never conferred upon Brown and the motion seeking to dismiss the action for lack of service is granted.
(Internal quotations and citations omitted).