Bhanti v. Jha

140 A.D.3d 685, 30 N.Y.S.3d 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2016
• Docket: 2014-03985
• Status: Published

Opinion

In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Martin, J.), dated February 26, 2014, as granted that branch of the defendant’s motion which was to dismiss the action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action to recover on a promis sory note by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. However, they made the motion returnable on a date prior to the expiration of the time within which the defendant had to appear in the action, which was a fatal jurisdictional defect (see Segway of N.Y., Inc. v Udit Group, Inc., 120 AD3d 789, 792 [2014]). Therefore, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the action.

The plaintiffs’ remaining contention is improperly raised for the first time on appeal (see Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757, 758 [1985]).

Balkin, J.P., Lev-enthal, Austin and Duffy, JJ., concur.