Bianco v. LiGreci

298 A.D.2d 482, 748 N.Y.S.2d 503, 2002 N.Y. App. Div. LEXIS 9976

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Nicholas LiGreci and John T. LiGreci appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated October 12, 2001, which granted the plaintiffs motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate so much of an order of the same court dated July 30, 2001, as, upon her default, granted their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The appellants failed to give the plaintiff timely notice of their motion for summary judgment (see CPLR 2103 [b] [2]; 2214 [b]; cf. Capoccia v Brognano, 132 AD2d 833). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion and deprives the court of jurisdiction to entertain the motion (see Welch v State of New York, 261 AD2d 537; Golden v Golden, 128 AD2d 672; Adames v New York City Tr. Auth., 126 AD2d 462; Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928). Furthermore, the plaintiff set forth facts sufficiently establishing that her cause of action is meritorious (see Trincere v County of Suffolk, 90 NY2d 976; Anamdi v Anugo, 229 AD2d 408, 409). Accordingly, the Supreme Court properly granted the plaintiffs motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate her default in answering the appellants’ motion for summary judgment. Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.