Round Hill Music, LP v. Simmons

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 22 were read on this motion for DEFAULT JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 002) 17, 18, 19, 20, 21 were read on this motion for DISMISSAL. DECISION + ORDER ON MOTION This is an action arising from a contractual dispute between the parties about musical royalty payments. On motion sequence 001, plaintiffs have moved for default judgment under CPLR 3215. (See NYSCEF No. 6.) On motion sequence 002, defendants have moved to dismiss under CPLR 3012 (b) for failure to serve and file a complaint. (See NYSCEF No. 17.) Plaintiffs’ motion was originally submitted without opposition. The court granted the motion on that basis (see NYSCEF No. 22), without taking into account that defendants had later filed opposition papers and also moved to dismiss (see NYSCEF Nos. 15 [opposition], 17 [notice of motion]. The court now concludes that the default-judgment motion warrants a second look, considering the opposition and reply papers and defendants’ dismissal motion. The prior grant of default judgment is vacated. The two motions are consolidated here for disposition. Each motion is denied. DISCUSSION I. Defendants’ CPLR 3012 (b) Dismissal Motion (Mot Seq 002) Because a decision on the dismissal motion could control whether a default judgment can (or should) be granted, the court considers that motion first. Plaintiffs commenced this action by filing of a summons with notice, rather than by filing a summons and complaint. (See NYSCEF No. 1; CPLR 304 [a].) The detailed summons satisfies the requirements of CPLR 305 (b). (See NYSCEF No. 1 at 2-3.) Eleven months after filing and serving the summons with notice,¹ plaintiffs e-filed a complaint (and thus also served it electronically through NYSCEF). Defendants move to dismiss the complaint on the ground that plaintiffs failed to serve it within the deadlines set by CPLR 3012 (b). When, as here, an action is begun by summons with notice, there are two scenarios in which CPLR 3012 (b) imposes a 20-day deadline to serve the complaint. First, if the defendant serves a written demand for the complaint before the applicable appearance deadline set by CPLR 320 (a), then plaintiff must serve the complaint on defendant within 20 days after defendant’s service of the demand. Second, if defendant serves a notice of appearance, but does not demand the complaint, plaintiff must serve the complaint within 20 days after service of the notice of appearance.² If one of these two deadlines applies, and plaintiff does not then timely serve the complaint, the court may, on motion, dismiss the action. (See CPLR 3012 [b].) If, on the other hand, defendant neither serves the demand nor appears, plaintiff’s time to serve a complaint does not begin to run, and dismissal under CPLR 3012 (b) is improper. (See Howard B. Spivak Architect, P.C. v. Zilberman, 59 AD3d 343, 344 [1st Dept 2009].) Here, it is undisputed that defendants served neither a demand for the complaint nor a notice of appearance. At most, they stipulated to accept service of the summons with notice and to extend their time to respond to that summons. (See NYSCEF No. 3.) Plaintiffs e-filed a complaint seven months after filing of the fully executed stipulation. (See NYSCEF No. 4.) The question thus arises whether that stipulation constituted an appearance by defendants for CPLR 3012 (b) purposes — and, if so, whether plaintiffs’ action should be dismissed for failure to serve their complaint timely. A. Whether CPLR 3012 (b)’s Service Deadlines Apply As CPLR 3012 (b) reflects, a party ordinarily appears by service of a formal notice of appearance. But longstanding precedent reflects that a party may also appear “informally” through other litigation-related conduct. (See Parotta v. Wolgin, 245 AD2d 872, 873 [3d Dept 1997], citing Cohen v. Ryan, 34 AD2d 789, 790 [2d Dept 1970].) A defendant’s execution of a stipulation extending the time to appear constitutes an informal appearance. (See Nardi v. Hirsh, 245 AD2d 205, 205 [1st Dept 1997]; see also Cohen, 34 AD2d at 790 [holding that a letter from defendant to plaintiff requesting an extension of time to respond constitutes an informal appearance]; accord CAC Atlantic LLC v. Sandler-Sims, 2023 NY Slip Op 32642[U], at *2 [Sup Ct, NY County 2023] [Stroth, J.] [holding that a stipulation extending defendant's time to answer or appear constitutes an appearance triggering plaintiff's CPLR 3012 [b] obligation to serve the complaint within 20 days].) Plaintiffs argue that the stipulation did not constitute an appearance because it preserved defendants’ right to challenge this court’s personal jurisdiction over them. (See NYSCEF No. 20 at