Justice Francois Rivera
Plaintiff moved for summary judgment in lieu of complaint against defendant seeking a money judgment on a promissory note for a $40,000 loan made to defendant, who defaulted by failing to make any payments. The court noted CPLR 3213 was a hybrid procedure, and as with a plenary action, jurisdiction was obtained over defendant by serving defendant with a summons, notice of motion and supporting papers. Plaintiff’s process server’s affidavit of service established that service was attempted under CPLR 308(2), personal service was made on defendant’s wife, and papers were mailed the next day to the same address. For successful completion of service under §308(2), the process server was required to file the affidavit of service with the court no later than 20 days of either delivery or mailing. As no affidavit was filed with the clerk’s office, plaintiff’s service on defendant was incomplete, thus defendant’s time to answer the motion never began. Further, the court found plaintiff did not give defendant the statutorily required time to appear and respond to the motion for summary judgment in lieu of complaint, noting such failure compelled not only denial of the motion, but dismissal of the action.
