Justice Francois Rivera
Beach House Condominium Association (BHCA) moved for summary judgment in lieu of complaint against defendants. BHCA sought to domesticate and enforce an unsatisfied money judgment it obtained against defendants by default in Florida for defendants’ failure to pay maintenance fees and club expenses as required by their timeshare agreement. The court noted that to successfully complete service under CPLR 308(2), BHCA was required to file the affidavits of service no later than 20 days of either delivery or mailing. Here, the affidavits of service did not contain a Kings County Clerk’s office stamp, or otherwise show they were filed with the clerk of court. Also, the court noted BHCA made the motion returnable on July 10, 2013, directing defendants to serve their answering papers at least five days before the return date. As such, it noted defendants were directed to serve their answer papers before service of motion was completed. The court ruled BHCA did not give defendants the statutorily required time to appear and respond to the motion, ruling such failure on a motion for summary judgment in lieu of complaint compelled not only denial of the motion, but dismissal of the action.
