Daulat v. Helms Bros.

32 A.D.3d 410, 819 N.Y.S.2d 557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 8, 2006
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated July 15, 2005, which denied his motion, in effect, to vacate an order of the same court dated November 4, 2004, granting the defendant’s motion for summary judgment on its counterclaim upon his failure to oppose the motion.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing on the issue of whether the plaintiff was properly served with the defendant’s motion, and a new determination of the plaintiffs motion to vacate thereafter.

The failure to provide 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 Bianco v LiGreci, 298 AD2d 482 [2002]; Welch v State of New York, 261 AD2d 537 [1999]; Golden v Golden, 128 AD2d 672 [1987]; Adames v New York City Tr. Auth., 126 AD2d 462 [1987]). The parties submitted conflicting evidence with respect to the issue of whether the plaintiff received the defendant’s motion for summary judgment. Accordingly, a hearing on that issue is necessary (see LPN Consulting Corp. v Hamm, 202 AD2d 479 [1994]; Adames v New York City Tr. Auth., supra; Sport-O-Rama Health & Fitness Ctr. v Centennial Leasing Corp., 100 AD2d 584 [1984]). Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ, concur.