The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 10, 11, 12 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT.

This is a CPLR 3213 motion for summary judgment in lieu of complaint, brought by a New Jersey corporation (plaintiff Blue Line Drywall & Builder, Inc.) to recover sums allegedly owed by defendants (SAM NJ 44 Stelton, LLC and Pioneer Construction & Development, Co.) under a contract pertaining to construction work performed in New Jersey. Defendants have not filed opposition papers. The motion is denied as against defendant Pioneer. The motion is denied, and the action is dismissed, as against defendant SAM NJ.

A CPLR 3213 motion may not be made returnable before the defendant's time to appear [*2]under CPLR 320 expires. (See Alpine Capital Bank v Estate of Shiah, 2020 NY Slip Op 50587[U], at *3 [Sup Ct, NY County May 20, 2020].) Plaintiff's affidavit of service reflects that its process server served SAM NJ in New Jersey on February 8, 2023, by delivery to an authorized agent under CPLR 311-a and CPLR 313. (See NYSCEF No. 10 [affidavit of service].) A defendant served under CPLR 313 has 30 days from the completion of service—here, the delivery of process itself—to appear or respond. (See CPLR 311-a; CPLR 320 [a]; CPLR 3012 [c].) SAM NJ's appearance deadline was March 10, 2023. Plaintiff's notice of motion, however, set a return date of March 7, 2023, 3 days before that deadline. (NYSCEF No. 2 at 1.) Plaintiff's failure to give defendant sufficient advance notice of the motion, as required by CPLR 320 and CPLR 3012, is a "fatal jurisdictional defect."^[FN1] (Bhanti v Jha, 140 AD3d 685, 686 [2d Dept 2016].)

Plaintiff served defendant Pioneer under CPLR 311 and CPLR 313 on January 30, 2023 (see NYSCEF No. 11 [affidavit of service]), making Pioneer's deadline to appear and respond March 1, 2023—six days before the March 7, 2023, return date. Plaintiff thus does not have the same short-service problem with respect to Pioneer as with SAM NJ.^[FN2]

But a different, perhaps more fundamental problem exists with respect to service on Pioneer. Plaintiff served Pioneer in Massachusetts. (See NYSCEF No. 11.) Plaintiff's affidavit in support of the motion represents, "[u]pon information and belief," that "Pioneer is incorporated in Massachusetts." (NYSCEF No. 3 at ¶ 5.) If that is correct, Pioneer is a non-domiciliary. CPLR 313 permits out-of-state service on a non-domiciliary defendant only where the court also has personal jurisdiction over the defendant under CPLR 301 or CPLR 302. And the record as it stands calls into question whether this court has that jurisdiction.

Plaintiff has not identified any conduct by Pioneer in New York State that would give rise to personal jurisdiction. The letter agreement on which plaintiff bases its claims reflects that those claims relate to a New Jersey construction project. (See NYSCEF No. 5 at 1.) And that agreement involves the payment of money to plaintiff (which plaintiff claims to be owed for its provision of materials to Pioneer for the project) in exchange for the release of a mechanic's lien filed with the clerk of Middlesex County, New Jersey. (See NYSCEF Nos. 4 [lien], 6 [lien release].)

At most, plaintiff's affidavit states, still "[u]pon information and belief," that Pioneer "performs construction work throughout the tri-state area, including New York County." (NYSCEF No. 3 at ¶ 5.) But even if this vague statement were sufficient to demonstrate that Pioneer "transacts any business within the state" for purposes of CPLR 302 (a) (1), plaintiff [*3]would still also have to show that its claim against Pioneer arises from the transaction of in-state business. On the record as this court now has it, it is unclear why that should be so.

To be sure, a party may consent to the exercise of jurisdiction by the New York courts under CPLR 301 even when long-arm jurisdiction under CPLR 302 would be impermissible. (See Pichardo v. Zayas, 122 AD3d 699, 702 [2d Dept 2014].) Plaintiff has not, however, attempted to show that Pioneer has consented (whether in a contract with plaintiff or otherwise) to this court's jurisdiction.

Even assuming that this court were to have personal jurisdiction over Pioneer, plaintiff has not demonstrated that it is entitled to summary judgment. The letter agreement on which plaintiff relies, although signed by Pioneer, appears on its face to impose payment obligations only on SAM NJ; and it does not contain a fallback provision that requires payment directly by Pioneer in the event that SAM NJ does not cover Pioneer's obligations as promised. (See NYSCEF No. 5 at 1.) This is not to say that plaintiff necessarily lacks a claim against Pioneer for the materials that plaintiff contends it provided Pioneer without repayment. But the current motion seeks summary judgment in lieu of complaint under CPLR 3213 based on an asserted instrument for the payment of money only—namely, the letter agreement. That agreement does not appear to require Pioneer unconditionally to pay plaintiff the claimed $170,334.53; and plaintiff has not provided any other evidence establishing its entitlement to that sum. The summary-judgment motion must therefore be denied.

CPLR 3213 provides that the default procedure when a motion is denied is to convert the proceeding into a plenary action, deeming "the moving and answering papers . . . the complaint and answer, respectively." But the court retains discretion to "order[] otherwise" in appropriate circumstances. Here, given the obvious service/personal-jurisdiction questions discussed above, the court declines at this time to convert the proceeding into a plenary action. Instead, plaintiff must first establish that personal jurisdiction exists over Pioneer under CPLR 301 or CPLR 302, such that plaintiff validly served Pioneer in Massachusetts.^[FN3] The court will then enter an order about the appropriate disposition of the proceeding (conversion into a plenary action, dismissal, or some other course).

Accordingly, it is

ORDERED that the branch of plaintiff's CPLR 3213 motion seeking summary judgment on its claim against defendant SAM NJ is denied, and the action is dismissed as against SAM NJ for lack of personal jurisdiction; and it is further

ORDERED that plaintiff's claim against Pioneer is severed and shall continue; and it is further

ORDERED that the branch of plaintiff's CPLR 3213 motion seeking summary judgment on its claim against defendant Pioneer is denied; and it is further

ORDERED that plaintiff shall, within 30 days of entry of this order, submit to the court evidence demonstrating that this court has personal jurisdiction over Pioneer under CPLR 301 or CPLR 302 (by e-filing on NYSCEF and email to [email protected]), whereupon this court will enter a further appropriate order; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties [*4]by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk, which shall enter judgment accordingly.