NC Community Ctr. Assoc. v. CDJX Jersey City, LLC

2024 NY Slip Op 31350(U)

• Court: New York Supreme Court, Kings County
• Decided: April 16, 2024
• Status: Unpublished

Opinion

NC Community Ctr. Assoc. v CDJX Jersey City, LLC 2024 NY Slip Op 31350(U) April 16, 2024 Supreme Court, Kings County Docket Number: Index No. 504697/2024 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 04/17/2024 09:41 AM INDEX NO. 504697/2024 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/17/2024

At art IAS Term, Part 52 of the Supreme Court of the State ofNew York, held in and for the-County of Kings, at the Courthouse, at Civic Center, Btooklyi1, New York, on the 16th day ofApril 2024 HONORABLEFRANCOIS A. RIVERA ------. ------------- .--------------------- .---------. .-. ---------X NC COMMUNITY CENTER ASSOCIATES,

Plaintiff, DECISION &ORDER Index No. 504697/2024 -a:crainst- 0

CDJX JERSEY CITY, LLC and ZENG RONG SONG,

Defendants. ---· ·-- ·-------------·--------. -------· ---------------- ..--. ----- ... -- :X

Recitation in accordance withCPLR2219(a) ofthe·papers considered on the sumnionsand notice of motion for summaryjudgment filed on February 15, 2024, under motion sequence number one, by NC Community Center Associates (hereinafter the plaintiff) for an order pursuant to CPLR § 3213 granting summary judgment in Heu of· complaint against defenda11ts CDJX Jersey CityLLC and Zeng Rong Song (hereinafter the defendants). The defendants. did not appear or submit opposition to the motion. -Summons and CPLR 3213 niotionwithRJ1 -'Notice of motion -Affidavit in support Exhibits A-G -Affinnation of service .,Affidavit ofservice

BACKGROUND

On February 15, 2024, plaintiff filed the instant motion.for summary judgment in lieu ofcomplaint with the. Kings County Clerk's ·otnce (hereinafter KCCO). The instant

motiori is. to collect a111011ey judgment ofthe Superior Court of New Jersey;

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The affirmation ofplaintiff's counsel in support alleges the following facts. By

lease dated November 30, 2020, CDJX Jersey City LLC leased from the plaintiffcertain

retail space at Newport Plaza in Jersey City, New Jersey for a 12-year period. Undetthe

lease, CDJX was required to pay plaintiff monthly rental charges, along with other

monthly ancillary charges. Defendant Zeng Ro11g Song executed a personal guaranty

(hereinafter the guaranty), whereby Zeng Rong Song unccmditionally guaranteed the

lease. In addition, the defendant agreed to pay all costs ofcollection and reasonable

attorney's fees in curred by plaintiff in connection with the Iease and the guaranty.

Pursuant to the lease, CDJX was required to pay minimum annual rent with

applicable yearly increases in accordance with section 1.1 ofthe lease, along with

operating expenses and all other sums of money or charges under the lease. CDJX failed . .

to pay its obligations in accordance with the lease.

Defendant Zeng Rong Song failed to satisfy the delinquent monies owed to the

plaintiff by CDJX pursuant to the lease and the guaranty. Com;idering the defendants'

breach ofthe guaranty, on or about November 10, 2022, plaintiff commenced a

proceeding to recover the amounts due and owing thereunder in the Supedor Coutt of

New Jersey, Hudson County,in the matter entitled NC Community Center Associates v.

CDJX Jersey Qity, LLCandZeng Rong Song, bearing Docket No. HUD-L-3761-22

(hereinafter the foreign acti.011).

The defe11dants foiled tn file an answer within the time prescribed by lavy, and a

request for defauJt was entered a11d therefore filed against both defendants separately;

Considering defenda,ntl;l' failure to appear, or·otherwise move with respectto the foreign

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action, on July 21, 2023, the Court awarded plaintiff a default judgment (hereinafter

judgment) against the defendants in the amount of $283,599.63 jointly and severally

against CDJX at1d Zeng Rong Song, inclusive of fees, costs, and interest.

On July 25, 2023,, pursuant to the Court's judgment, plaintiff's counsel served a

certified copy of the Ord et forFinal Judgment by Default on the non-appearing

defendants. Thereafter, a certified copy of the July 21, 2023 judgment was obtained. The

instrmhent at issue here, the judgment, is for payment of money, within the meaning of

CPLR § 3213, and there are no material issues of fact precluding summary judgment

becauseit is for a sum certain.

SERVICE OF THE MOTION

On March 22, 2024, Angela Roy, one ofplaintitFs process servers, (hereinafter

Roy) filed an affidavit of service with KCCO. Roy alleged serVice of the surrtmons,

notice of motion for summary judgrhent in lieu of complaint, and other papers

(hereinafter the commencemerH papers} art defendant CDIX Jersey City LLC onJvlarch

11, 2024, by service upon Sue Zoulay of the New York State Secretary of State.

On March 22, 2024, I ane Nunn, plaintiff's other process server, (hereinafter Nunn)

filed an affidavit of service with the KCCO allegilig service of the comntencement papers

ort defendai1t CDJX Jersey City LLC on March 11, 2024, by service upon Nicki Dodson

·of the New Jersey State Secretary of State;

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On March 22, 2024, John Hucler 1 plaintiff's other process server, (hereinafter

Bueler) filed an affidavitofservice with the KCCO alleging service of the

coinmenceme11t papers) ori defendant Zeng Rong Song by delivery to a person of suitable

age at Zeng Rong Song's: dwelling, followed by a mailing to that residence, and then

followed by a filing of the affidavit of service with the KCCO.

APPLICABLE STATUTES.

CPLR3U8 sections land 2 provide in pertinent part as follows: Personal $ervice upon a natural person. Personal service upon a natural person shall be made by any of the following methods: L by delivering the slitmnons within the state to the person to be served; or 2. by delivering the surnmons within the state to a person of suitable age and discretion a:tthe actual place of business, dwelling place or usual place of abode of the person to be served artd by either inailing the summons to the person to be served at his orher la8t known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of bush1ess in an envelope bearing the legend ''personal and confidei1tial" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against theperson tobe served, such delivery and mailing to be effected within twenty days· of each other; proof of such service shall be filed with the clerk of the court designated in the surrtmonswithin twenty days of either such deli very or mailing, whichever is effected latet; service shall be complete ten days after such filing; proof of service shall identify such person of suitable ag'e and discretion and state the date; time and place of service, except in matriinonial actions where setvice hereunde~ may be madeputsuant to an order made in accordance with the provisions of subdivision [a] ofsection two hundred thirty- two of the domestic relations law. CPLR 306(b)(l) provides in pertinent part as follows: S~rvice of process on the secretary ofstate as agent of a domestic or authorized foreign corporation shall be rp_ade in the :manner provided by clause. (i) 01: (ii) of this subparagraph~ Ei thet option of service authorized p 1.1rstiant ·to this at subparagraph shall be available no extra cost to the consumer. (i) Personally delivedt1g to and leaving with the secretary of.state or a deputy, or with any person authorized by the secretary of state to receive such service, at th.e office of the

1 The process servei·'s name was not printed on the aftidaVit and the last name was barely legible. This is the Court's .approxiniationofthe last name. .

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department of state in the city of Albany, duplicate copies of suchprocess together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretaryofstate isso served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to st1ch corporation, at the post office address, on file in the department of.state, specifiecl. for the purpose. If a domestic or authorized foreign cmvoration has no such address on file in the department of state, the secretary of state sha11 so mail such copy, in the case of a domestic corporation, in care of any director named in its certificate ofincotporation at the director's addtess stated therein or, in the case of an authorized foreign corporation, to such corporation at the address ofits office within this state on file in the department. (ii) Electronically submitting a copy of the process to the department of state together with the statutory fee, which fee shalt be. a fax able disbursement, through an electronic system operated by the department of state, provided the domestic 01' authorized foreign corporation has an email address on file in the department ofstate to which the secretary of state :;hall email a notice of the fact that process has been served electronically on the secretary of state. Service of process on such corporationshall be coirtplete when the secretmy of state has reviewed and accepted service of such process. The secretary ofstate shall promptly send a notice ofthe fact that process has been served to such corporation at the email address on file in the department of state, specified for the purpose and shall make a copy ofthe process available to such corporatioi1. CPLR 2214(a)and (b) provides as follows: Motioi1 papers; service; time. (a) Notice of motion. A notice ofmotion shall specify the timeandplace of the hearing on the motion, the suppo1ting papers upon which the motion is based, the relief demanded arid the grounds therefor. Relief in the alternative or of several differerit types may be derrtanded. (b) Time for service of notice and affidavits. A notice ofmotion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits:shall be served at least two days before such time. Answering affidavits and any notice ofcross_,;-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so denmnds; whereupon any reply or responding affidavits shall be served at least one day before such time. CPLR 3213 provides as follows: Motion for :surr'nnruy judginent irt lieu bt'complaittL When an action is based upon an instruthent for the.payment of money only br upon any judgment1 the plaintiff may serve with the . summons a notice of motio)l for summary judgment and the, supporting papers inJ ieu of a complaint. The. summons served with. such motion papersshall require the defendanho submit answering papers on the motion within the time provided.in the .notice of motion. The niinimuin tilne such motion shall be noticed to•be.heai'd.shall b~ as provided by subdivision (a) of rule 320 for tnakir1g an appearance, dependiog upon the method ofservice.Ifthe plaintiff sets

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the hearing date of the motion later than the-minimumtimetherefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period oftime, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivisiop (a) of section 3215 pdor to the hearing date of the motion. If the motion is denied, the rhoving and answering papers shall be deemed the compfaint and answer, respectively, unless the court orders otherwise.

DISCUSSION

"CPLR 3213 isa hybrid procedure incorporating certain elements of an action and

certain elements of motion practice" ( Goldstein v Saltzman, 13 Misc 3 d 1023, 1025, [Sup

Ct, Nassau County 2006], citing Flushing Natl. Bank v. Brightside Mfg., 59 Misc 2d 108

[Sup Ct1 Queens County 1969]). "As with a plenary actfon,jurisdiction is obtained over

the defendant by serving the defendant with the su1nmoi1s, notice of motion and

supporting papers in a method prescribed in CPLRArticle 3. The minimum amqunt of

timethe plaintiff must give the defendant to oppose the 111otion for summary judgment in

lieu of complaint is determined by the amount of time the defendant would have to

appear in the action if the defendant had been served with a summons and colllplaint or

summons with notice'' (Goldstein, 13 Misc 3d at 1025).

CPLR 3213 provides, "[t]he minimum time such motion shall be noticed to be

heard shall be as provided by subdivision (a) ofrule 320 formakingan appearance,

depending upon the inethod ofservice,' 1 ' 1Thus; in a CPLR 3213 moticini the rriinimuin

amount of time the plaintiifmust give the defendant to appear and oppose the motion is

dependent upon the date and 11iethod of service." (Id; citingDavid.D. Si.egel,NYPrac §

2 91 [4th ed]; Weinstein~Kcn;h.;Millet, NY Ci v Pra:c , 3213. 0 3; Siegel, Practice

Commentades; McKinney's Cons Laws of NY, Book 7B; CPLR C3213 :5).

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If the defendant is a natural person who is served pursuant to CPLR 308 (2) the

minimum amount of timethe between service of the summons and motion papers and the

return date is forty days ( Goldstein, 13 Misc 3d at 1025 n, 1), "CPLR 320 (a) gives a

defendant served in this manner thirty days from cmupletion of service to appear, Service

is complete ten days after the affidavit of service is filed with the county clerk" (Id), Hucler's affidavit of service, demonstrates that he served defendant Zeng Rong

Song pursuant to CPLR 308 {2). Plaintiff completed service on April 1, 2024, ten days

after March 22, 2024, the date Hucler filed the affidavitofservice. Pursuant toCPLR

320 (a), the defendant should have been given until May 2, 2024, thirty days from April

1, 2024, to appearand oppose the instant motion.

On March 11, 2024, Angela·Roy served thecommencementpapers on defendant

CDIX Jersey City LLC by serviceupon Sue Zoulay of the New York State Secretary of

State. This method of service complies with Business Corporations Law 306 (See id.),

Plaintiff should have given the defendant until April 10, 2024, thfrty days from March l1,

2024, to appear and oppose the instant motion.

On March 19,2024, JaneNunn, plaintiff's other process server also served the

commencement papers on defendant CDJX Jersey City LLC by delivery to Nicki Dodson

of the New Jersey State Secretary of State. By this inethod of service plaintiff should

have given the .defendant un ti 1Apri 1 18, 2024, thirty days from March 19, 2024, to appear

a,nd oppose the instant motion.

Plaintiff did not . give CDJX Jersey City LLC orZet1g Rong Song the minimu111

statutory time to appear·and oppose the instant motion, Inst¢ad, the.plaintiffn1adethe·

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instant motion returnable on March 28, 2024, mid directed the defendant to serve

answering papers upon it seven days before March 28, 2024. The court lacks personal

jurisdiction because. the rnovant failed to·provide the defendant timely notice ofthe

motion (and thus of the defendanfs obligation to file answering papers). (See Segway of

NY; Inc. v Udit Group, Inc., 120 AD3d 789, 791-792 [2d Dept 20 l 4 ]). Additionally,

because failing to provide sufficient advance notice ofa motion1s return date creates a

greater possibility of frustrating the core principles of notice to the defendant this defect

may not be corrected or disregarded under CPLR 2001 (Id. at 792). A failure to give the

defendant the statutorily mandated time tn appear and answer a motion for summary

judgment ill lieu of complaint compels not only a denial of the motion, but also a

dismissal of the action (see Malan1ent v Jong Kim, 22 Misc]d 11 l0[A] [Sup Ct, Nassau

County 200S]).

Therefore, NC Community Center Associates' motion forsuminary judgmentin

lieu of complaint is denied, and the action is dis1rtissed.

The fote goi11g constitutes the dedsi on and order of th is court.

ENTER:

J.S.C. HOft FRANCOIS A; RIVERA'.··~

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