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  • Posted on: Apr 12 2019

There are numerous ways in which a defendant can respond to a summons and complaint.  Among other options, a defendant can interpose an answer or move to dismiss some or all of the complaint.  The time to respond to the complaint depends on, among other things, the manner of service of process (see, e.g., CPLR 308; CPLR 320).  CPLR 3211(f), which grants an automatic extension of time to interpose an answer to a complaint in the event that a motion to dismiss is made, provides that the “[s]ervice of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order.”

In the event that notice of entry of an order deciding a motion to dismiss pursuant to CPLR 3211(a) or (b) is not served, a defendant’s time to answer the complaint does not begin to run.  The Supreme Court, Appellate Division, Second Department recently addressed this issue in JBBNY, LLC v. Dedvukaj, decided on April 10, 2019.

JBBNY Defendants Victor and Violeta Dedvukaj (collectively, “Dedvukaj”) were served with process in a mortgage foreclosure.  In response, Dedvukaj moved to dismiss the complaint pursuant to CPLR 3211(a), which motion was denied by order dated June 24, 2015 (the “June Order”).  On August 11, 2015, plaintiff served notice of entry of the June Order, by mail, on the attorney for another defendant, but not Dedvukaj.  As this was a NYSCEF case, promptly upon the mail service, plaintiff electronically filed the notice of entry of the June Order, with proof of mailing.  Accordingly, a NYSCEF “confirmation notice” was sent to Dedvukaj’s counsel.  There is no dispute that notice of entry of the June Order was not served on Dedvukaj or their counsel.  [Editor’s note: Upon review of the subject notice of entry on the NYSCEF system, it is clear that same was not sent “to” Dedvukaj, nor does the affidavit of service indicate that Dedvukaj was served.]

In October of 2015, Dedvukaj served an answer with counterclaims, which was rejected as “untimely” by plaintiff.  Thereafter, plaintiff moved for, inter alia, a default judgment against Dedvukaj and for an order of reference.  Dedvukaj cross-moved for a default judgment against plaintiff for failure to answer their counterclaims.  Supreme Court granted plaintiff’s motion, denied Dedvukaj’s motion and entered a judgment of foreclosure and sale.  Dedvukaj appealed.

The Second Department reversed, holding that “[c]ontrary to the determination of the Supreme Court, since the plaintiff never served the Dedvukaj defendants with notice of entry of the [June Order] denying their motion to dismiss the complaint, their answer was timely served, as their time to answer never started to run.”  (Citations omitted.)  In so holding, the Second Department analyzed 22 NYCRR 202.5-b, the relevant e-filing rules, and stated:

Pursuant to 22 NYCRR 202.5-b, the court rule governing electronic filing for the Supreme Court, a party may serve an interlocutory document upon another party by filing the document electronically: “Upon receipt of [the] interlocutory document, the NYSCEF site shall automatically transmit electronic notification to all e-mail service addresses in such action . . . . Except as provided otherwise in subdivision (h)(2) of this section, the electronic transmission of the notification shall constitute service of the document on the e-mail service addresses identified therein” (22 NYCRR 202.5-b[f][2][ii] [emphasis added]).


Subdivision (h)(2), which appears in a subsection entitled “Entry of Orders and Judgments and Notice of Entry,” provides, in relevant part: “[a] party may serve [an order or judgment and written notice of its entry] electronically by filing them with the NYSCEF site and thus causing transmission by the site of notification of receipt of the documents, which shall constitute service . . . by the filer. In the alternative, a party may serve a copy of the order or judgment and written notice of its entry in hard copy by any method set forth in CPLR 2103(b)(1) to (6). If service is made in hard copy by any such method and a copy of the order or judgment and notice of its entry and proof of such hard copy service are thereafter filed with the NYSCEF site, transmission by NYSCEF of notification of receipt of those documents shall not constitute additional service of the notice of entry on the parties to whom the notification is sent” (22 NYCRR 202.5-b[h][2] [emphasis added]).

According to the Second Department, the “plain language” of E-filing rules compelled the conclusion that Dedvukaj could not be deemed to have been served with notice of entry of the June Order by virtue of their receiving the E-file confirmation receipt of plaintiff’s service of the June Order on the other defendant.  Therefore, Dedvukaj did not default in answering the complaint and “Supreme Court should have granted that branch of their first cross-motion which was to compel the plaintiff to accept their answer.”  (Citation omitted.)

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