In a December 23, 2008 decision, Justice Austin denied plaintiff’s motion for summary judgment in lieu of complaint and dismissed plaintiff’s action which was based upon two promissory notes.
The Court found that the plaintiff failed to provide defendant with the required time to oppose the motion in setting the return date on the motion, and therefore the court lacked jurisdiction to hear the motion and the action must be dismissed with prejudice.
The Court explained that in setting the return date on a motion for summary judgment in lieu of complaint the motion must provide for a date to serve opposition papers which is equal to the amount of time the defendant would have to appear in the action if the defendant had been served with a summons and complaint or summons with notice. Because substituted service was utilized, 40 days after service was completed (i.e. an affidavit of service was filed with the clerk) was the appropriate date for opposition papers. For the corporate entity served by way of the secretary of state, 30 days was the appropriate date for opposition papers.
The Court also noted that in setting the return date the movant must not only allow the opposing party the necessary time to submit opposition papers, but must also allow time for the movant to support reply papers.