Macchia v. Drazba

Appellate Division of the Supreme Court of New York

Macchia v. Drazba

234 A.D.2d 523, 651 N.Y.S.2d 925

Appellate Division of the Supreme Court of the State of New York·Decided December 23, 1996·Published

Opinion

—In an action to compel specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Schmidt, J.), entered December 15, 1995, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment is denied.

Since one of the defendant sellers named in the action died before he was able to be served with the summons and complaint, the court never acquired jurisdiction to determine a summary judgment motion on his behalf (see, Urena v NYNEX, Inc., 223 AD2d 442; see also, Surdam v Vance, 160 AD2d 1142, 1144; City of N. Y. Dept. of Fin. v Reznick, 113 AD2d 914). Moreover, since the other defendant failed to timely respond to the complaint, he was in default, which was not excused by the Supreme Court. Therefore he had no standing to move for summary judgment (see, CPLR 3012 [a]; 3212 [a]; 3215 [a]). Under the circumstances, the Supreme Court erred by considering the motion for summary judgment on the merits. Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.

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—In an action to compel specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Schmidt, J.), entered December 15, 1995, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment is denied.

Since one of the defendant sellers named in the action died before he was able to be served with the summons and complaint, the court never acquired jurisdiction to determine a summary judgment motion on his behalf (see, Urena v NYNEX, Inc., 223 AD2d 442; see also, Surdam v Vance, 160 AD2d 1142, 1144; City of N. Y. Dept. of Fin. v Reznick, 113 AD2d 914). Moreover, since the other defendant failed to timely respond to the complaint, he was in default, which was not excused by the Supreme Court. Therefore he had no standing to move for summary judgment (see, CPLR 3012 [a]; 3212 [a]; 3215 [a]). Under the circumstances, the Supreme Court erred by considering the motion for summary judgment on the merits. Mangano, P. J., O’Brien, Pizzuto, Goldstein and Luciano, JJ., concur.

Macchia v. Drazba, 234 A.D.2d 523, 651 N.Y.S.2d 925 (N.Y. Ct. App. 1996).

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Opinion

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