U.S. Bank National Association v. Nunez
Attorneys and Parties
Brief Summary
Mortgage foreclosure; personal jurisdiction and motion practice deadlines.
Granted defendants’ unopposed CPLR 306-b cross-motion to dismiss for lack of personal jurisdiction; denied plaintiff’s cross-motion as untimely; and determined plaintiff’s motion to discontinue and cancel the notice of pendency.
Only the determination of plaintiff’s motion to discontinue and cancel the notice of pendency.
Plaintiff had filed a notice of withdrawal before the court ruled, so the motion should have been deemed withdrawn (see CPLR 3217[b] [voluntary discontinuance by court order]). The remainder was affirmed because opposition and cross-motion papers were untimely absent leave (see CPLR 2214[b] [timing for service of motion papers]) and dismissal under CPLR 306-b [service within 120 days or court may extend or dismiss] was unopposed.
Background
Plaintiff commenced a mortgage foreclosure action on May 27, 2022, against Pedro and Milagros Nunez. On or about June 9, 2023, plaintiff moved, in effect, under CPLR 3217(b) [voluntary discontinuance by court order] to discontinue without prejudice and to cancel and discharge the notice of pendency. Defendants opposed and cross-moved under CPLR 306-b [service within 120 days or court may extend or dismiss] to dismiss for lack of personal jurisdiction. On or about July 17, 2023, plaintiff filed and served a notice of withdrawal of its discontinuance motion. On August 24, 2023, plaintiff filed a cross-motion seeking to confirm personal jurisdiction or, alternatively, an extension of time to serve under CPLR 306-b and alternative service under CPLR 308(5) [court-directed method of service].
Lower Court Decision
By order dated August 30, 2023, the Supreme Court, Queens County, (1) determined plaintiff’s motion to discontinue without prejudice and to cancel and discharge the notice of pendency, (2) granted, as unopposed, defendants’ CPLR 306-b cross-motion dismissing the complaint as to them for lack of personal jurisdiction, and (3) denied, as untimely, plaintiff’s cross-motion to confirm jurisdiction or, alternatively, to extend time to serve under CPLR 306-b and for CPLR 308(5) relief, finding no leave had been granted and declining to consider untimely opposition.
Appellate Division Reversal
Modified only to delete the determination of plaintiff’s discontinuance motion and to deem that motion withdrawn because plaintiff had withdrawn it before the court ruled. Otherwise affirmed: the grant of defendants’ CPLR 306-b cross-motion was proper as unopposed, and the denial of plaintiff’s cross-motion was proper as untimely absent leave (see CPLR 2214[b]). The court also rejected plaintiff’s claim of oral permission to file late papers, as the written order reflected otherwise.
Legal Significance
Clarifies that a motion withdrawn before decision cannot be adjudicated and should be deemed withdrawn; emphasizes strict adherence to motion practice deadlines under CPLR 2214(b) and that untimely opposition or cross-motions require leave; confirms that unopposed CPLR 306-b applications to dismiss for lack of timely service will be granted; and that requests for extensions of time to serve or alternative service under CPLR 306-b and CPLR 308(5) must be timely and properly noticed.
If a party withdraws a motion before decision, the court must treat it as withdrawn; unopposed CPLR 306-b dismissal for lack of timely service will stand, and late opposition or cross-motions will be disregarded absent leave.