Hibbard v. Shaad

Appellate Division of the Supreme Court of New York

Hibbard v. Shaad

99 A.D.2d 670, 472 N.Y.S.2d 44, 1984 N.Y. App. Div. LEXIS 16935

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

DecidedJanuary 27, 1984

StatusPublished

Cited by2 cases

This text of 99 A.D.2d 670 (Hibbard v. Shaad) 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

Hibbard v. Shaad, 99 A.D.2d 670, 472 N.Y.S.2d 44, 1984 N.Y. App. Div. LEXIS 16935 (N.Y. Ct. App. 1984).

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Opinion

Order unanimously reversed, without costs, and motion granted. Memorandum: Special Term erred in denying defendant’s motion to vacate an order which granted summary judgment to plaintiff on the issue of liability only. It is conceded that service by mail of plaintiff’s motion papers seeking summary judgment did not comply with the time requirements of CPLR 2214 (subd [b]) and 2103 (subd [b], par 2) (see Irish Propane Corp. v Burnwell Gas Distrs., 25 AD2d 616). Summary judgment may not be granted against a defendant who fails to appear in response to a motion on which he did not receive the minimum notice required by statute (Morabito v Champion Swimming Pool Corp., 18 AD2d 706, 707). Plaintiff remains free, of course, to again seek summary relief upon proper notice. (Appeal from order of Supreme Court, Jefferson County, Lynch, J. — vacate default judgment.) Present — Dillon, P. J., Hancock, Jr., Green, O’Donnell and Schnepp, JJ.

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Order unanimously reversed, without costs, and motion granted. Memorandum: Special Term erred in denying defendant’s motion to vacate an order which granted summary judgment to plaintiff on the issue of liability only. It is conceded that service by mail of plaintiff’s motion papers seeking summary judgment did not comply with the time requirements of CPLR 2214 (subd [b]) and 2103 (subd [b], par 2) (see Irish Propane Corp. v Burnwell Gas Distrs., 25 AD2d 616). Summary judgment may not be granted against a defendant who fails to appear in response to a motion on which he did not receive the minimum notice required by statute (Morabito v Champion Swimming Pool Corp., 18 AD2d 706, 707). Plaintiff remains free, of course, to again seek summary relief upon proper notice. (Appeal from order of Supreme Court, Jefferson County, Lynch, J. — vacate default judgment.) Present — Dillon, P. J., Hancock, Jr., Green, O’Donnell and Schnepp, JJ.

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Bluebook (online)

99 A.D.2d 670, 472 N.Y.S.2d 44, 1984 N.Y. App. Div. LEXIS 16935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibbard-v-shaad-nyappdiv-1984.

Opinion

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