Mitelman & Son Meat Processing, Inc. v. Meat Packers & Butchers Supply Co.

272 A.D.2d 531, 708 N.Y.S.2d 897, 2000 N.Y. App. Div. LEXIS 5817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2000
• 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, Kings County (Jones, J.), dated April 15, 1999, which denied its motion, among other things, to vacate a prior order of the same court, dated November 18, 1998, denying its motion to renew the defendant’s prior motion to stay the action pending determination of an arbitration proceeding pending between the parties in California, which was granted by order of the same court dated May 19, 1998.

Ordered that the order is affirmed, with costs.

The plaintiff’s order to show cause seeking, inter alia, to vacate the prior order dated November 18, 1998, which was signed by Justice Jones on March 16, 1999, was required by its terms to be served upon the defendant’s attorney pursuant to CPLR 2103 (b) (6) by overnight mail. The attorney for the defendant means the defendant’s attorney of record (see, 4 Weinstein-Korn-Miller, NY Civ Prac 2103.03). The defendant’s New York counsel, its attorney of record, was never served with the plaintiffs motion papers. In addition, the record does not contain an affidavit of service evidencing any attempt by the plaintiff to properly serve its order to show cause. A motion that is not properly served must be denied (see, Joffe v Rubenstein, 30 AD2d 949; Szuldiner v City of New York, 18 AD2d 897).

In light of our determination we do not address the parties’ remaining contentions. Friedmann, J. P., Krausman, Luciano and Schmidt, JJ., concur.