On motion sequence 001 in this action, this court granted without opposition a CPLR 3213 motion for summary judgment in lieu of complaint, brought by plaintiffs, Michael Pinelli and Charlotte Pinelli, against defendants, David Shorenstein, Jason Silverstein, and Silvershore Properties 128 LLC. (See NYSCEF No. 11.) Defendants now move under CPLR 5015 (a) (4) to vacate this court's order. (See NYSCEF No. 28 [order to show cause].^[FN1] ) The motion is granted; and the action is dismissed for lack of personal jurisdiction over defendants.

When an action is based on an instrument for the payment of money only, "the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint." (CPLR 3213.) Here, as defendants point out, plaintiffs did not serve or file a notice of motion with the other initiating documents. (See NYSCEF No. 6 [affidavits of service].) Indeed, plaintiffs never personally served the notice of motion at all. Instead, three weeks after service of the other documents, plaintiffs e-filed a notice of motion setting a return date 16 days out from filing (see NYSCEF No. 9), mailing a copy of the notice of motion to defendants by regular mail two days later (see NYSCEF No. 10).

Because plaintiffs did ultimately file the notice of motion (albeit belatedly), this is not the kind of incurable commencement defect that would render the action a nullity. (See Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 327-328 [2011].) The question, then, is whether this court may exercise its discretion under CPLR 2001 to treat the notice of motion as having been properly filed and served. The court concludes that it may not do so.

CPLR 2001 provides that a court may permit "a mistake, omission, defect or irregularity" to "be corrected, upon such terms as may be just"; or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." Here, there would be no way to "correct," after the fact, the omission of the notice of motion from the initiating papers in the action (and the notice's belated filing three weeks later). Instead, the question is whether this court may disregard that omission as a nonprejudicial, technical defect.

A defect is "merely technical" for these purposes only if it will not affect the likelihood that the papers commencing the action "will reach defendant[,] . . . inform him that he is being sued," and afford him an opportunity to respond. (Ruffin v Lion Corp., 15 NY3d 578, 582-583 [2010].) In the CPLR 3213 context, the notice of motion sets a defendant's deadline to respond (at least beyond the minimum time afforded by CPLR 320 [a]). Omitting the notice of motion from the initial service packet prevents defendant from knowing when they must respond, limiting defendant's ability to do so.

In some instances, courts have concluded that the omission of a return date from an initiating document, like a CPLR article 78 notice of petition, may be disregarded under CPLR 2001. (See Bender v Lancaster Cent. Sch. Dist., 155 AD3d 1590, 1591 [4th Dept 2017]; Matter of Oneida Pub. Lib. Dist. v Town Bd. of the Town of Verona, 153 AD3d 127, 130 [3d Dept 2017].) But in both these cases, the court concluded that the error was nonprejudicial, because the record reflected that the respondent had ample time to respond to the petition. (See id.) Indeed, in Matter of Oneida Public Library, respondents had enough time before their response deadline to file a motion to change venue. (See 153 AD3d at 128.)

Here, plaintiffs first filed the notice of motion only 16 days before the return date, rather than, as CPLR 3213 envisions, 20-40 days before the return date. (See CPLR 3213, citing CPLR 320 [a].) And, unlike the CPLR article 78 context, defendants here were required within that limited time to prepare and file papers opposing summary judgment—not merely file an answer to a petition. (Cf. Matter of Johnny S. v New York State Off. of Children & Family Servs., 221 AD3d 1235, 1236 [3d Dept 2023] [disregarding under CPLR 2001 petitioner's failure to afford respondent the statutorily required 20 days to respond, when respondent moved to dismiss for short service on the day before the petition's hearing date].) The limitation in defendants' opportunity to respond in this case was prejudicial.^[FN2]

Plaintiffs' omission of the notice of motion from the initiating documents in this action constituted a defect in the commencement of this action that the court may not disregard under [*2]CPLR 2001. As a result, this court lacks personal jurisdiction over defendants.^[FN3]

Accordingly, it is

ORDERED that defendants' motion under CPLR 5015 (a) (4) to vacate this court's order entered October 2, 2024, is granted; and that order and the judgment signed by this court on November 7, 2024, but not yet entered, are vacated; and it is further

ORDERED that this CPLR 3213 motion action is dismissed as against all defendants for lack of personal jurisdiction; and it is further

ORDERED that defendants shall serve a copy of this order with notice of its entry on all parties; and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.