Court Dismisses Action For Summary Judgment In Lieu Of Complaint Over “Clear And Fatal Jurisdictional Defect” In Return Date

On October 15, 2024, Justice Margaret A. Chan denied plaintiffs’ motion for summary judgment in lieu of complaint and dismissed the action after finding that the return date on the motion had occurred before the defendants’ time to respond elapsed. In Starship Holdings, LLC, et al., v. Maxben Holdings, LLC, et al., Index No. 651427/2024, the plaintiffs initially commenced an action for repayment on a loan agreement and note by summons and notice. The summons and notice were served on defendants on March 21, 2024. Plaintiffs also filed a notice of motion for summary judgment in lieu of complaint, setting a return date of April 9, 2024. As a result, the return date of the motion occurred only 19 days after service was completed on defendants—before the time either defendant was required to respond.

The Court found this to be a “clear and fatal jurisdictional defect.” It explained:

A CPLR 3213 motion may not have a return date prior to when the defendant’s time to appear elapses. . . . In this case, service of the complaint was effectuated pursuant to CPLR 311(a) on Maxben, a limited liability company, and pursuant to CPLR 308(2) on Dalpour (see NYSCEF #s 11·13). As such, the time for defendants to make an appearance, and the minimum time that the present motion must be noticed, is 20 days for Maxben and 30 days for Dalpour. . . . 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 [] notice of motion but for defendants’ filing of their attorney's affidavit to contest the motion, it is nevertheless the case that plaintiffs made the motion returnable prior to the expiration of both defendants' time to appear. This clear and fatal jurisdictional defect plainly warrants dismissal for lack of jurisdiction.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning motions for summary judgment in lieu of complaint. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.