| Howard B. Spivak Architect, P.C. v Zilberman |
| 2009 NY Slip Op 01400 [59 AD3d 343] |
| February 26, 2009 |
| Appellate Division, First Department |
| Howard B. Spivak Architect, P.C., Appellant, v HenryZilberman et al., Respondents. |
—[*1] Weiss & Associates, PC, New York (Matthew J. Weiss of counsel), forrespondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered November 29, 2007,which, inter alia, granted defendants' motion pursuant to CPLR 3012 (b) to dismiss the action forfailure to timely serve a complaint, unanimously reversed, on the law, without costs, the motiondenied, and the matter remanded for further proceedings.
On December 7, 2006, plaintiff commenced this action to recover damages for breach ofcontract against defendants by filing a summons with notice. Approximately one week later,plaintiff's counsel mailed a "courtesy copy" of the summons with notice to defendants' counsel.A few days after the "courtesy copy" was mailed, defendants' counsel served on plaintiff'scounsel a notice of appearance in the action. On January 11, 2007, just over three weeks after thenotice of appearance was served, plaintiff's process server personally served defendant HenryZilberman with the summons with notice and served the same on defendant Susan Zilberman bydeliver-and-mail.
On or about April 3, 2007, defendants moved to dismiss the action on the ground thatplaintiff failed to serve its complaint. Defendants maintained that, because their attorney served anotice of appearance on December 18, plaintiff's time to serve its complaint had lapsed (CPLR3012 [b]). Approximately one day after defendants made the motion, plaintiff served defendantswith the complaint. Additionally, plaintiff opposed the motion, and cross-moved for an extensionof time to serve its complaint. Supreme Court granted the motion and denied the cross motion,finding that plaintiff failed timely to serve the complaint and that plaintiff was not entitled to anextension of time to serve it.
"If the complaint is not served with the summons, the defendant may serve a written demandfor the complaint within the time provided in subdivision (a) of rule 320 for an appearance.Service of the complaint shall be made within twenty days after service of the demand. . . If no demand is made, the complaint shall be served within twenty days afterservice of the notice of appearance" (CPLR 3012 [b]). CPLR 320 (a) provides, in relevant part,that "[t]he defendant appears by serving an answer or a notice of appearance, or by making amotion which has the effect of extending the time to answer. An appearance shall be madewithin twenty days after service of the summons, except that if the summons was servedon the defendant . . . pursuant to section 303, subdivision two, three, four or five ofsection 308 . . . , the appearance [*2]shall be madewithin thirty days after service is complete" (emphasis added). As the SecondDepartment has observed, "[n]o provision is made for an appearance or a demand for acomplaint before the summons is served" (Micro-Spy, Inc. v Small, 9 AD3d 122, 124 [2004]).
Here, under CPLR 320 (a), service of the summons with notice on defendantstriggered defendants' obligation to appear or answer the action. Because defendants did notanswer or serve a notice of appearance after they were served with the summons with notice,plaintiff's time to serve them with the complaint did not begin to run. Concomitantly, plaintiffdid not fail to comply with CPLR 3012 (b) (see Micro-Spy, supra).
Contrary to defendants' contention, defense counsel's service of a notice of appearance didnot trigger plaintiff's obligation to serve a complaint under CPLR 3012 (b) ("If no demand ismade, the complaint shall be served within twenty days after service of the notice ofappearance"). Because there is no evidence, indeed no claim, that defendants designated theirattorney pursuant to CPLR 318 as their agent for service of process, defendants' attorney lackedauthority to accept service of process on behalf of defendants (see Broman v Stern, 172AD2d 475, 476 [1991]). Accordingly, the notice of appearance that defendants' attorney servedon plaintiff's attorney in response to the courtesy-copy summons with notice, and beforedefendants themselves were served with a summons with notice, was a nullity (seeMicro-Spy, supra [defendant may not demand a complaint under CPLR 3012 (b)before being served with a summons with notice]). Concur—Tom, J.P., Saxe, McGuire,Moskowitz and Freedman, JJ.