Home > Keyword > CPLR 2001 > Court Dismisses CPLR 3213 Motion for Lack of Subject Matter Jurisdiction Based on Plaintiff’s Failure to Serve and File Summons: Giaquinto v Long Island Rubbish Removal E. Corp.

Court Dismisses CPLR 3213 Motion for Lack of Subject Matter Jurisdiction Based on Plaintiff’s Failure to Serve and File Summons: Giaquinto v Long Island Rubbish Removal E. Corp.

By Matthew D. Donovan on May 10th, 2011 Posted in CPLR 2001, CPLR 3211, CPLR 3213, Justice Emerson, Elizabeth, Motion to Dismiss, Subject Matter Jurisdiction, Suffolk, Summary Judgment, Summary Judgment in lieu of Complaint, Waivable Defect

In a May 2, 2011, decision by Justice Emerson, the court dismissed defendant’s motion for summary judgment in lieu of complaint for lack of subject matter jurisdiction. Defendant moved under CPLR 3213 but failed to serve and file the summons with its accompanying motion papers. Because it is the service and filing of the summons that invokes the court’s jurisdiction on a motion under CPLR 3213, and because the non-filing of papers required for the commencement of an action is a non-waivable defect under CPLR 2001, the court dismissed defendant’s action.

Giaquinto v Long Island Rubbish Removal E. Corp., Sup Ct, Suffolk County, May 2, 2011, Emerson, J., Index No. 14873/10.