Henry v. Meinken

Appellate Division of the Supreme Court of New York

Henry v. Meinken

139 A.D.2d 565, 527 N.Y.S.2d 252, 1988 N.Y. App. Div. LEXIS 3932

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 1988

StatusPublished

This text of 139 A.D.2d 565 (Henry v. Meinken) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henry v. Meinken, 139 A.D.2d 565, 527 N.Y.S.2d 252, 1988 N.Y. App. Div. LEXIS 3932 (N.Y. Ct. App. 1988).

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Opinion

— In an action to recover a civil forfeiture pursuant to CPLR article 13A, the plaintiff District Attorney of Suffolk County appeals from an order of the Supreme Court, Suffolk County (Lama, J.), entered December 11, 1986, which denied his motion pursuant to CPLR 3213 for summary judgment in lieu of complaint.

Ordered that the order is affirmed, without costs or dis[566]*566bursements, and the appellant’s time to serve a complaint is extended until 20 days after service upon him of a copy of this decision and order, with notice of entry.

The stipulation signed by the defendant, while arguably providing "for the payment of money only”, is not the type of "commercial paper” envisioned by CPLR 3213 (Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 154-155; Wagner v Cornblum, 36 AD2d 427, 428-429; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:3, at 829-830). Further, CPLR 1311 (5) provides that "[a]n action for forfeiture shall be commenced by service * * * of a summons with notice or summons and verified complaint”. Accordingly, the Supreme Court, Suffolk County, properly denied the plaintiff’s motion pursuant to CPLR 3213 for summary judgment in lieu of a complaint. The Supreme Court, Suffolk County, properly converted the plaintiff’s motion to a plenary action and directed the plaintiff to serve a complaint (CPLR 3213). After joinder of issue or upon the default of the defendant, the plaintiff may, if he be so advised, take any appropriate steps for an accelerated judgment. Mengano, J. P., Bracken, Spatt and Harwood, JJ., concur.

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— In an action to recover a civil forfeiture pursuant to CPLR article 13A, the plaintiff District Attorney of Suffolk County appeals from an order of the Supreme Court, Suffolk County (Lama, J.), entered December 11, 1986, which denied his motion pursuant to CPLR 3213 for summary judgment in lieu of complaint.

Ordered that the order is affirmed, without costs or dis[566]*566bursements, and the appellant’s time to serve a complaint is extended until 20 days after service upon him of a copy of this decision and order, with notice of entry.

The stipulation signed by the defendant, while arguably providing "for the payment of money only”, is not the type of "commercial paper” envisioned by CPLR 3213 (Interman Indus. Prods. v R. S. M. Electron Power, 37 NY2d 151, 154-155; Wagner v Cornblum, 36 AD2d 427, 428-429; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:3, at 829-830). Further, CPLR 1311 (5) provides that "[a]n action for forfeiture shall be commenced by service * * * of a summons with notice or summons and verified complaint”. Accordingly, the Supreme Court, Suffolk County, properly denied the plaintiff’s motion pursuant to CPLR 3213 for summary judgment in lieu of a complaint. The Supreme Court, Suffolk County, properly converted the plaintiff’s motion to a plenary action and directed the plaintiff to serve a complaint (CPLR 3213). After joinder of issue or upon the default of the defendant, the plaintiff may, if he be so advised, take any appropriate steps for an accelerated judgment. Mengano, J. P., Bracken, Spatt and Harwood, JJ., concur.

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Bluebook (online)

139 A.D.2d 565, 527 N.Y.S.2d 252, 1988 N.Y. App. Div. LEXIS 3932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-meinken-nyappdiv-1988.

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