CPLR § 3213 and a problem with service

CPLR § 3213 Motion for summary judgment in lieu of complaint

Engel v Boymelgreen2011 NY Slip Op 00348 (App. Div., 2nd 2011)

The appeal from the amended order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the amended order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

"Generally, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Washington Mut. Bank v Holt, 71 AD3d 670, 670; see Associates First Capital Corp. v Wiggins, 75 AD3d 614City of New York v Miller, 72 AD3d 726, 727; Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing" (City of New York v Miller, 72 AD3d at 727; see Associates First Capital Corp. v Wiggins, 75 AD3d 614;Washington Mut. Bank v Holt, 71 AD3d 670Scarano [*2]v Scarano, 63 AD3d 716Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

Here, the plaintiff's process server swore that he served the summons and motion papers upon the defendant by affixing the papers to the door of a property, which the plaintiff alleged was the defendant's dwelling place or usual place of abode, and then mailing a copy to that same address. The defendant swore that he did not reside at that address and provided an affidavit from the resident of that address which provided, in detail, that she lived at that address with her own family and had advised the plaintiff's process server that the defendant did not reside there. Thus, the defendant established that he was entitled to a hearing on the issue of service, and the Supreme Court erred in making a determination on the plaintiff's motion for summary judgment in lieu of complaint prior to conducting such a hearing (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074Wells Fargo Bank, NA v Chaplin, 65 AD3d 588Zion v Peters, 50 AD3d 894, 894; Kingsland Group v Pose, 296 AD2d 440). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing at which the plaintiff will have to establish jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074Wells Fargo Bank, NA v Chaplin, 65 AD3d 588Zion v Peters, 50 AD3d 894).

Moreover, contrary to the plaintiff's contention, a letter dated July 8, 2008, allegedly sent to the plaintiff by the defendant—the document upon which the plaintiff moved for summary judgment in lieu of complaint—was a request for a loan and not an instrument for the payment of money only (see Weissman v Sinorm Deli, 88 NY2d 437, 444; Ro & Ke, Inc. v Stevens, 61 AD3d 953Comforce Telecom, Inc. v Spears Holding Co., Inc., 42 AD3d 557Stallone v Rostek, 27 AD3d 449Gregorio v Gregorio, 234 AD2d 512). The Supreme Court erred in awarding judgment in favor of the plaintiff pursuant to CPLR 3213, as the letter did not contain an unconditional promise by the defendant to pay the plaintiff a sum certain by a set date (see Weissman v Sinorm Deli, 88 NY2d 437). Therefore, in the event that the Supreme Court, Kings County, determines, after a hearing, that it has personal jurisdiction over the defendant, the action is to proceed as a plenary action, with the motion and answering papers deemed to be the complaint and answer, respectively (see Lugli v Johnston, 78 AD3d 1133).

 

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