Eliasco v. Eliasco

Appellate Division of the Supreme Court of New York

Eliasco v. Eliasco

3 A.D.2d 989, 163 N.Y.S.2d 41, 1957 N.Y. App. Div. LEXIS 5238

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1957

StatusPublished

This text of 3 A.D.2d 989 (Eliasco v. Eliasco) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eliasco v. Eliasco, 3 A.D.2d 989, 163 N.Y.S.2d 41, 1957 N.Y. App. Div. LEXIS 5238 (N.Y. Ct. App. 1957).

Pincite

Opinion

In the absence of an affidavit by the defendant stating that he was not served with the summons and complaint — the fact of the service and a description of the circumstances having been attested to by the affidavit in opposition — the moving papers are insufficient to raise any issue. Order vacating the service pending a reference to hear and report was unwarranted and must be reversed. As defendant is now overseas, he should be afforded a reasonable opportunity to answer or otherwise move with respect to the complaint. Settle order accordingly on notice. Concur — Botein, J. P., Rabin, McNally and Bergan, JJ.

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In the absence of an affidavit by the defendant stating that he was not served with the summons and complaint — the fact of the service and a description of the circumstances having been attested to by the affidavit in opposition — the moving papers are insufficient to raise any issue. Order vacating the service pending a reference to hear and report was unwarranted and must be reversed. As defendant is now overseas, he should be afforded a reasonable opportunity to answer or otherwise move with respect to the complaint. Settle order accordingly on notice. Concur — Botein, J. P., Rabin, McNally and Bergan, JJ.

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Bluebook (online)

3 A.D.2d 989, 163 N.Y.S.2d 41, 1957 N.Y. App. Div. LEXIS 5238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eliasco-v-eliasco-nyappdiv-1957.