On October 10, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Blue Lagoon LLC v. Roth, 2024 NY Slip Op. 34051(U), holding that a motion for summary judgment in lieu of complaint must be accompanied by a summons, explaining:
CPLR § 3213 states that where appropriate the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. In Fattarusso v. Levco American Improvement Corp., 144AD2d 626, 535 NYS2d 62 [2d Dept., 1988] the court held that a summons must be served along with the notice of motion. The court stated the fact the plaintiff proceeded by way of motion for summary judgment in lieu of complaint does not dispense with the jurisdictional requirement that a summons be served.
The affidavit of the process server does not indicate whether the summons was likewise served along with the notice of motion and the plaintiff does not argue in support of that contention. Thus, upon the presentation of the documents the motion seeking to vacate the default for the failure to perform proper service is granted.
(Internal quotations and citations omitted).