The following papers having been read on this motion:

Notice of Motion, Affidavits, & Exhibits        1, 2

Answering Affidavits        3, 4

Replying Affidavits        5, 6

Briefs: Plaintiff's / Petitioner's

Defendant's / Respondent's

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including efiled documents/exhibits, the motion by the defendant to dismiss this action on the ground inter alia that the summons with notice does not comply with CPLR 305 (b), and the motion by the plaintiffs, pursuant to CPLR 3025, for inter alia leave to amend the summons with notice, are consolidated for disposition and decided as follows:

The motions at bar illustrate the importance of understanding basic, elementary New York civil procedural rules, and serve as a cautionary tale of the possible danger of using a [*2]summons with notice to commence an action and risking dismissal if its inadequate.

Ordinarily, there should be no risk to a plaintiff in using such a simple, efficient method to commence an action pursuant to CPLR 304 ["[a]n action is commenced by filing a summons and complaint or summons with notice"], especially when there is a timing emergency if the statute of limitations is about to expire (see, Micro-Spy, Inc. v. Small, 9 AD3d 122, 125—26 (2nd Dept. 2004) [quoting the Office of Court Administration's memoranda in the 1978 NY Judicial Conference, Twenty-third Annual Report, at 271, 274]. CPLR 305 (b) states straightforwardly "Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default."

However Professor David D. Siegel "often pointed out the drawbacks of starting an action with a summons and mere notice...instead of a full-fledged complaint," and articulated the procedural trap for the unwary (or negligent) as follows :

"The disadvantage is almost invariably to the plaintiff; it often makes possible unanticipated events that can bring about a dismissal of the action. The dismissal in these instances is not on the merits, however, so it's remediable with a new action at the cost of just an additional filing fee.

That is, of course, unless the statute of limitations has expired.

That's always the worst risk....so let's take that scenario: the original statute of limitations has now passed...CPLR 305 (b) requires that the notice state 'the nature of the action'. Suppose the statement of the action is found inadequate...So the next question is, does a dismissal for a CPLR 305(b) defect count as a jurisdictional defect?...Will the new action be allowed to invoke CPLR 205(a)? That's the provision that allows a fresh six months [to commence] a new action after the non-merits dismissal of the first one. If it applies, the claim is saved. But does a claim dismissed because of a CPLR 305(b) defect get the CPLR 205(a) six months?

It does not. One of the exceptions in CPLR 205(a), in which the six months is denied, is a dismissal for lack of personal jurisdiction" [emphasis supplied].

The possible negative consequences of commencing an action by filing a summons with notice instead of by filing a summons and complaint was further explained by Appellate Division, Second Department in Micro-Spy, Inc. v. Small, 9 AD3d 122, 125—26 [2nd Dept. 2004):

"If a complaint is inadequate, it may be amended (see CPLR 3025). However, if a summons without a complaint contains an inadequate notice of the nature of the action and the relief demanded, the inadequate notice is grounds to dismiss the action [citations omitted]. A summons dismissed for failure to comply with the notice requirements of CPLR 305(b) is "jurisdictionally defective" and cannot be amended [citations omitted]. Further, if the plaintiff's summons is dismissed for failure to comply with CPLR 305(b) the six-month extension for commencement of a new action pursuant to CPLR 205(a) is not available (see Parker v. Mack, 61 NY2d 114; Farkas v. Tarrytown Lbr., 133 AD2d 251)...The IAS court also properly denied plaintiff permission to amend the summons in order to set forth the nature of the action. "A jurisdictionally void summons cannot be [*3]amended to breathe life into a dead claim (see, Tamburo v. P & C Food Markets, 36 AD2d 1017), since to do so would be to prejudice "a substantial right of a party against whom the summons issued" (CPLR 305[c] )."

Prior to the advent of the commencement by filing system in New York in 1992, the landmark case pertaining to the perils of failing to properly comply with CPLR 305 (b) and serve a complaint with a summons was the Court of Appeals case of Parker v. Mack, 61 NY2d 114 (1984), in which the Court dismissed the action for want of personal jurisdiction due to the jurisdictional defect of serving only a bare summons on the defendant. The Court further held that this particular jurisdictional defect prevented the plaintiff from taking advantage of CPLR 205 (a) and commence a new action within six months of the dismissal (Parker v. Mack, 61 NY2d 114, 115-116 (1984) ["the fatal consequence of a lack of jurisdiction over the person of the defendant, as contrasted with a lack of subject matter jurisdiction, for purposes of availability of a CPLR 205 (subd [a]) extension, is well recognized" supra at 118; compare post-Goldenberg v. Westchester County Health Care Corp., 16 NY3d 323 (2011), cases, e.g., Maddux v. Schur, 139 AD3d 1281, 1281 (2nd Dept. 2016) "although plaintiff purchased an index number and filed a complaint, she never filed a summons or summons with notice. Given plaintiff's failure, the purported action was a nullity, and Supreme Court properly dismissed it for want of subject matter jurisdiction" (emphasis supplied, citations omitted)]. Parker's pronouncement was echoed by the Legislature in amending CPLR 2001 in 2007, and later by the Court of Appeals in Goldenberg v. Westchester Cty. Health Care Corp., 16 NY3d 323, 328 (2011): "A bare summons, for example, would not constitute a filing [to commence an action]. Given the absence of a summons [with the complaint], there was "a complete failure to file within the statute of limitations," which the trial judge could not disregard. In sum, "an insufficient notice [contained in the summons] is likely to result in dismissalbecause it is the equivalent of commencing an action with only a bare summons. Add to that a statute of limitations problem, and the peril of relying on CPLR 305 (b) becomes plain" (Siegel & Connors, NY Prac supra at 132 [6thed 2018]).

Here, defendant's counsel argues that the plaintiffs failed to include in the summons with notice the date of the accident, the specific location of the accident, the type of actionable injury sustained, and the amount of the damages requested to compensate for those injuries.

Thus, the motions at bar turn on the determination of whether the summons with notice, electronically filed by plaintiffs' counsel on March 26, 2019, the last possible day to file on behalf of the adult plaintiffs, Miguel and Lourdes Abreu, within the three -year statute of limitations for negligence actions (see CPLR 214), is adequate. It states the following:

"The nature of the action is inter alia personal injury.

The relief sought is an amount to be proven at trial.

Upon your failure to appear, judgment will be taken against you by default for the sum of $ ____with interest from ___ 20___ together with costs and disbursements of this action."

"How much need one include in a 'notice' to be sure it's sufficient?" asked Professor Siegel (190 Siegel's Prac. Rev. 1 [2007]). Some appellate panels in the First Department have strictly construed the adequacy of the notice and dismissed the action with prejudice based on [*4]lack of personal jurisdiction (see, Roth v. State University of New York, 61 AD3d 476 (2009) ["the summons described the nature of this action as 'violations of federal, New York State, and New York City human rights laws, including but not limited to' various named statutes"]; Scaringi v. Broome Realty Corp., 191 AD2d 223 (1993) ["defendant could not reasonably have been expected to ascertain the nature of the action from plaintiff's mere description of same as 'Premises'. That term does not denote a recognizable cause of action"]).

However, other appellate panels in each department have adopted a more expansive, liberal interpretation of a CPLR 305 (b) notice: "A liberal construction of the statutory requirement of the contents of the notice accompanying a summons served without a complaint is consistent with the general policy of the CPLR (see, CPLR 104). Defendant's contention that plaintiff was required to specifically state his theory of recovery is unavailing since 'absolute precision is not necessary'" (Bullis v. Am. Motors Corp., Subsidiary of Chrysler Corp., 175 AD2d 535, 536 (3rd Dept. 1991) ["[t]he nature of this action is personal injury proximately caused by a defective product. The relief sought is money damages"], quoting Viscosi v. Merritt, 125 AD2d 814 (3rd Dept. 1986) ["[t]he nature of this action is Automobile negligence]). Directly on point to the summons filed in the case at bar is the First Department case decided before the 2009 Roth decision, but on the same day by the same panel that issued the Scaringi decision, Pilla v. La Flor De Mayo Exp., Inc., 191 AD2d 224, 224 (1st Dept. 1993): "While the words 'personal injury' may not apprise the defendants of the precise legal theory behind plaintiff's case, they adequately apprise defendants of the 'nature of the action' [emphasis added]" (Pilla v. La Flor De Mayo Exp., Inc., 191 AD2d 224, 224 [1st Dept. 1993]; see also Bergman v. Slater, 202 AD2d 971 (4th Dept. 1994) [nature of action stated as "personal injury"]). Similar general notices in summonses were upheld as sufficiently complying with CPLR 305 (b), as in the Fourth Department case of Andrulis v. Fox, 284 AD2d 1006 (4th Dept. 2001) [" the notice identifying the nature of the action as 'tort' is sufficient to comply with the statute"], and in the Second Department case of Grace v. Bay Crane Serv. of Long Island, Inc., 12 AD3d 566 (2nd Dept. 2004) ["TAKE NOTICE that this is a personal injury action for damages amounting to THREE MILLION and 00/100 ($3,000,000) DOLLARS..."] (see also Rowell v. Gould, Inc., 124 AD2d 995 (4th Dept. 1986) ["t]he nature of this action is negligence"]).

In view of these Appellate Division holdings, this Court finds that the plaintiffs' inartful summons with notice complies with the statutory notice requirement of CPLR 305 (b) and adequately apprises the defendant of the nature of the action at this nascent stage of the litigation (see, Bergman v. Slater, 202 AD2d 971; Pilla v. La Flor De Mayo Express, 191 AD2d 224). The Court notes that although plaintiffs' summons with notice is insufficient for the purpose of obtaining a possible default judgment against the defendant since the notice does not request a specific amount of damages if the defendant defaults (see, Wilber Nat. Bank v. F & A Inc. 301 AD2d 706 [3rd Dept. 2003]), any monetary amount stated could not be entered as a judgment by default since this is a negligence action, not a contract action, and any damages awarded by default would have to determined at an inquest. The Court further notes that defendant's counsel concedes in paragraph four of his affirmation in support of the motion to dismiss that "this action concerns a traffic accident involving Plaintiffs and Defendant which occurred on March 26, 2016."

Accordingly, the branch of defendant's motion (sequence number 001) to dismiss this action pursuant to CPLR 3211 (a) (8), on the ground that the Court lacks personal jurisdiction over the defendant due to the noncompliance of plaintiffs' summons with notice with CPLR 305 [*5](b), is denied.

In view of the foregoing, the branch of plaintiffs' motion (sequence number 002) for an order, incorrectly denominated as a motion pursuant to CPLR 3025, "compelling the defendant to accept the amended summons and complaint, and granting leave to amend the summons with notice filed," is granted, pursuant to CPLR 305 ( c), to the extent that in view of this Court's finding that the original summons with notice filed complies with CPLR 305 (b), the summons with notice shall be deemed amended, in the form of the proposed amended summons annexed to plaintiffs' motion, upon the service of a copy of this order on defendant's attorney and upon plaintiffs' attorney's electronic filing of the amended summons.

Furthermore, in view of the defendant's appearance in this action by moving to dismiss and not demanding a complaint pursuant to CPLR 3012 (b), and in light of the plaintiffs' attorney failure to file a complaint in accordance with CPLR 3012 (b) (see, Micro-Spy, Inc. v. Small, supra at 125), the Court sua sponte directs the plaintiffs' attorney to electronically file, and serve upon defendant's attorney, a complaint, within twenty days after the service of a copy of this order upon plaintiff's counsel.

The branch of defendant's motion for an order dismissing this action pursuant to CPLR 3211 (a) (7), on the ground that the summons with notice fails to state a claim is denied since a summons with notice is not a pleading, and a CPLR 3211 (a) (7) motion to dismiss the complaint for failure to state a cause of action cannot be made until the complaint is filed and served.

The branches of defendant's motion for an order dismissing this action pursuant to CPLR §§ 3211 (a) (8) and CPLR 306-b, on the ground that the plaintiff did not timely and properly serve the defendant, is denied their entirety. The Court finds that the plaintiffs timely and duly served the summons with notice in accordance with CPLR 306-b and CPLR 308 (2). The plaintiffs' process server avers that he timely served process on the defendant by substituted service on April 8, 2019; consequently, the affidavit of service constituted prima facie evidence of proper service upon the defendant pursuant to CPLR 308 (2) (see, Bedessee Imports, Inc. v. Najjar, 170 AD3d 640, 641 (2nd Dept. 2019). However, the defendant failed to rebut the presumption of proper service by submitting a sworn detailed statement by a person with personal knowledge of the service of the summons with notice (see, Deutsche Bank Nat. Tr. Co. v. Quinones, 114 AD3d 719 (2nd Dept. 2014).

The foregoing constitutes the decision and order of this Court.