DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY

JUDGMENT

XXXXXXXXXXXXX

Address

In Pro Per

IN THE CIVIL COURT OF THE CITY OF XXXXX

XXXXXX )  
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Plaintiff, )  
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v. ) INDEX NO.: XXXX
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XXXXXXXX )  
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Defendant. )  
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DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

MEMORANDUM

  1. BACKGROUND
  2. The Plaintiff commenced this action on or about January 3rd, 2020, by filing a summons and a complaint.
  3. The Plaintiff claims to have effected service of the complaint on February 6th, 2020. However, the service was not effected directly on the Defendant and instead served on an individual whose names are unknown and relation to the Defendant is also unknown.
  4. On February 18th, 2020, the Defendant filed an answer to the complaint, which answer was duly served on the Plaintiff.
  5. On March 12th, 2020, the matter was brought before the Honorable Judge XXXXXXXXX for conference trial. During this session the Defendant sought a traverse hearing and brought to the attention of the court the Plaintiff’s failure to sufficiently effect service on the Defendant.
  6. The Plaintiff being opposed to the traverse hearing filed its motion for summary judgment with a trial date scheduled for August 9th, 2021. However, the traverse hearing is yet to be heard and determined by a court of law.
  7. The Defendant now files the present motion in opposition of the Plaintiff’s motion for summary judgment and challenging the jurisdiction of this court to hear the Plaintiff’s motion and complaint prior to traverse hearing.
  1. ARGUMENT
  • Proper service of process is necessary before the court can acquire personal jurisdiction over the defendant to a lawsuit.  If service of process is not properly effectuated the court is “…without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.”   Citimortgage, Inc. v. Twersky, 153 A.D.3d 1230 (citations omitted.)
  • CPLR 308 sets forth several methods by which service of process may be effectuated on an individual. “Service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person pursuant to CPLR 308.”   Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1174 (citations omitted).  Even if a defendant becomes aware of a pending litigation it “will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308.”  Washington Mut., 127 A.D.3d at 1174 (citations omitted).  Indeed, where service of process is not properly effectuated, a defendant may move to dismiss a complaint on the ground that “the court has not jurisdiction of the person of the defendant.”  CPLR 3211(a)(8); Washington Mut., 127 A.D.3d at 1174.
  • “since a court cannot exercise personal jurisdiction over a party named in a complaint until that party has been properly served,” the Plaintiff’s motion for summary judgment remains detrimentally premature. (Lead I JV, LP v. N. Fork Bank, 401 B.R. 571, 576 (E.D.N.Y. 2009)). As it stands, in this case the matter of jurisdiction remains a pertinent question yet to be answered by this Honorable Court. A traverse hearing has been scheduled by to proceed before this Honorable Court to settle the issue of service upon the Defendant and whether the same was proper.
  • Yet, despite the pending traverse hearing, the Plaintiff has proceeded to overrule the authority of this honorable court to determine jurisdiction, and has instead submitted a motion for summary judgment in support of the complaint.

Wherefore, these and other premises considered, Plaintiff moves this Court to dismiss the Plaintiff’s motion for summary judgment, as outlined above and order parties to proceed with traverse hearing.

DATED:                                     Respectfully Submitted

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