5 Ca.(\ INDEX No. 6776- SUPREME COURT - STATE OF NEW YORK IAS TERM PART 14 NASSAU COUNTY PRESENT: HONORABLE EPR CAPITAL LLC - against - LEONARD B. AUSTIN Justice Motion RID: 6-15- Submission Date: 6-15- Motion Sequence No. : 001/ MOT D Plaintiff NEW AMSTERDAM RESTORATION GROUP, INC. and ALLEN MIRENBERG Defendants. COUNSEL FOR PLAINTIFF Burkhart, Wexler & Hirschberg, LLP 585 Stewart Avenue, Suite 750 Garden City, New York 11530 COUNSEL FOR DEFENDANT NO APPEARANCE ORDER The following papers were read on Plaintiff's unopposed motion for summary judgment in lieu of complaint: Summons dated Apri/17, 2007; Notice of Motion dated Apri/17, 2007; Affidavit of Eric P. Reichenbaum sworn to on Apri/18, 2007. Plaintiff, EPR Capital, LLC (" EPR"), seeks summary judgment in lieu of complaint pursuant to CPLR 3213. During the years 2004 and 2005, EPR made a series of loans and advances to the Defendants totaling $321, 322. 71.
EPR CAPITAL, LLC v. NEW AMSTERDAM RESTORATION GROUP, INC. By promissory note dated September 30, 2005, Defendants promised to repay to EPR the principal sum of $321, 322. 71 together with interest at the rate of 10% per annum. Although the note contains a provision for a default rate of interest of 18% per annum, Plaintiff seeks interest at the rate of 10%. Defendant, Alan Mirenberg Mirenberg ), executed the note as president of Defendant New Amsterdam and individually as a primary obligor. EPR alleges that although it has made due and proper demand for payment such payment has not been received. Based upon Defendants' default, EPR seeks summary judgment in lieu of complaint. The motion was returnable on June 15, 2007. The notice of motion contains the language of CPLR 2214(b) demanding answering papers at least seven days prior to the return date of the motion. DISCUSSION CPLR 3213 permits a party to move for summary judgment in lieu of complaint where the action is based upon an instrument for payment of money only. A promissory note is an instrument for the payment of money only. Bank Leumi Trust Co. v. Rattet & Liebman, 182 A.D. 2d 541 (1 Dept. 1992). Plaintiff establishes a prima facie case by submitting proof of the existence of a promissory note executed by the Defendant containing unequivocal and unconditional obligations to repay and the Defendant's default. Constructamax. Inc. v. CBA
Associates. Inc., 294 Ad.2d 460 (2 Dept. 2002); and Colonial Commercial COrD. v. Breskel Associates, 238 AD.2d 539 (2 Dept. 1997). See also Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD. 2d 136 (1 Dept. 1968), aff' 29 N. 2d 617 (1971); Chemical Bank v. Nemeroff, 233 AD. 2d 239 (1 Dept. 1996); and Key Bank v. Munkenbeck, 162 AD.2d 503, 162 AD. 2d 503. Once plaintiff has established a prima facie case, the defendant must come forward with evidence establishing the existence of triable issues of fact on a bona fide defense. Colonial Commercial Corp. v. Breskel Assoc. supra; and Silber v. Muschel 190 AD.2d 727 (2 Dept. 1993). A demand note is due and payable on the date it is issued. Uniform Commercial Code 9 3-122( 1 )(b). Plaintiff has established a prima facie entitlement to judgment as a matter of law. The note is payable on demand. An action on a promissory note payable on demand may be brought immediately, the suit itself is sufficient demand. Howland v. Edmonds, 24 N. Y. 307 (1862); and 80 NY Jur2d Negotiable Instruments and Other Commercial Paper 9349. Plaintiff has established the existence of the promissory note and Defendants default. The Defendants do not oppose the motion. Summary judgment should be granted against the Defendants if they were properly and timely served. See, Goldstein v. Saltzman, 13 Misc. 3d 1023 (Sup. Ct. Nassau Co. 2007).
, " CPLR 3213 is a hybrid procedure incorporating certain elements of an action and certain elements of motion practice. Flushing National Bank v. Brightside Manufacturing Inc., 59 Misc.2d 108 (Sup. Ct. Queens Co. 1969). As with a plenary action, jurisdiction is obtained over the defendant by serving the summons, notice of motion and supporting papers in a method prescribed in CPLR Article 3. The minimum amount of time a plaintiff must give the defendant to oppose the motion 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 complaint or summons with notice. CPLR 3213 provides The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service." Thus, the minimum amount of time a plaintiff must give the defendant to appear and oppose the motion is dependent upon the date and method of service See, Siegel New York Civil Practice 4 9291; 1 New York Civil Practice: CPLR 3213. 03; and McKinney Practice Commentaries C3213:5. At this point, CPLR 3213 diverges from a plenary action and begins to resemble motion practice under CPLR Article 22. As with motion practice, the moving party must select a specific return date on which the motion is to heard. The notice of motion for relief under CPLR 3213 accompanying the summons must contain the same information as would be contained in a notice of motion served pursuant to CPLR
2214(a); to wit: the court before which the motion is being made, the date, time and place of the hearing of the motion, the papers being filed in support of the motion. As with regular motion practice, the movant sets the return date of the motion. The only statutory requirement or guidance as to the return date on the 3213 motion is that the minimum time shall be as provided by CPLR 320(a) for appearing in action. As with CPLR Article 22 motion practice, a party moving pursuant to CPLR 3213 can request answering papers be served in advance of the return date. A plaintiff moving for summary judgment in lieu of complaint may demand answering papers up to ten days prior to the return date of the motion. A plaintiff seeking to obtain answering papers up to ten days in advance of the return date, must add that number of days to the return date. When proceeding under CPLR 3213, the plaintiff must pick a return date for the motion when the papers are prepared and action is commenced, even though the plaintiff does not know when or how the defendant wil be served. Therefore, a plaintiff who proceeds under CPLR 3213 must make certain that the return date of the motion is sufficiently distant from the date of service so the defendant has adequate time to appear and respond. See, Siegel New York Civil Practice 4 Practice Commentaries C3213:5. 9291, and McKinney New Amsterdam was served on May 7, 2007 by serving the Secretary of State as statutory agent for the corporation pursuant to Business Corporation Law 9306(b)( 1 ).
Service is complete upon delivery of the summons and complaint to the Secretary of State. Id. Where jurisdiction over a corporation is obtained by serving the Secretary of State, the corporation has 30 days from the date of service in which to appear. Since Plaintiff demanded service of opposing papers seven days prior to the return date, New Amsterdam had to be served at least 37 days prior to the return date. New Amsterdam was served 39 days prior to the return date. Since service was upon New Amsterdam was properly and timely served, summary judgment should be granted against New Amsterdam. Mirenberg was served pursuant to CPLR 308(4) with the " nailng" having been accomplished on April 30, 2007 and the mailng having been done on May 1 2007. The affidavit of service with regard to Mirenberg was filed with the County Clerk on May 16, 2007. A person served pursuant to CPLR 308(4) must appear within thirty days after service is complete. Service is complete 10 days after the affidavit of service is filed with the county clerk. EPR demanded opposing papers at least seven days prior to the return date. Therefore, in order to give Mirenberg the time required by statute to appear and oppose, the motion had to be returnable 47 days from the date upon which the affidavit of service was filed with the County Clerk which is July 3 2007. When a defendant has not been provided with the statutorily required time in Ten days after the filing of the affidavit of service for completion fo service (CPLR 308(41), plus 30 days to appear (CPLR 320(a1), plus time for opposition papers, 7 days prior to the return date (CPLR 3213).
which to answer a motion made pursuant to CPLR 3213, the court lacks jurisdiction the motion must be denied without prejudice and the action dismissed. Goldberg v. Saltzman. supra; Putnam County National Bank of Carmel v. Bischofsberger, 82 Misc. 2d 915 (Sup. Ct., Putnam Co. 1975); Tokyo Leasing (U. A) Inc. v. G- IV Wash. Clean & Dry. Inc. 4 Misc. 3d 164 (Dist. Ct., Nassau Co. 2004); and Kemp v. Hinkson, 73 Misc.2d 76 (Dist. Ct., Suffolk Co. 1975). See also, National Bank of Canada v. Skydell, 181 AD.2d 645 Dept. 1992); and 1 New York Civil Practice: CPLR 1f 3213. 02. Since Mirenberg was not given the statutorily required time in which to appear and oppose, the motion against Mirenberg must be denied and the action against him dismissed without prejudice. Accordingly, it is, ORDERED that Plaintiff' s motion for summary judgment in lieu of complaint is granted as to the Defendant New Amsterdam Restoration Group, Inc. and it is further ORDERED that the County Clerk is directed to enter a judgment in favor of the Plaintiff, EPR Capital LLC, and against the Defendant, New Amsterdam Restoration Group, Inc., in the sum of $321322., together with interest at the rate of 10% per annum from September 30, 2005 to the date of the entry of the judgment together with costs and disbursements as taxed by the Clerk; and it is further
,..,,- EPR CAPITAL, LLC v. NEW AMSTERDAM RESTORATION GROUP, INC. ORDERED that Plaintiff' s motion for summary judgment against the Defendant Allen Mirenberg is denied and the action against Defendant Allen Mirenberg is severed and dismissed without prejudice. This constitutes the decision and Order of the Dated: Mineola, NY August 7, 2007 ENTERED AUG 0 Q 2001 r",.".. - JUI\ fv COUNTY CLERKS OFFICE