Precourt v. Kyanka

Appellate Division of the Supreme Court of New York

Precourt v. Kyanka

168 A.D.2d 1006, 564 N.Y.S.2d 947, 1990 N.Y. App. Div. LEXIS 16624

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

DecidedDecember 21, 1990

StatusPublished

This text of 168 A.D.2d 1006 (Precourt v. Kyanka) 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

Precourt v. Kyanka, 168 A.D.2d 1006, 564 N.Y.S.2d 947, 1990 N.Y. App. Div. LEXIS 16624 (N.Y. Ct. App. 1990).

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Opinion

Order unanimously reversed on the law without costs, cross motion denied, motion granted, and complaint dismissed. Memorandum: The affidavit of service by mail raised a presumption that proper mailing occurred, and because service was complete upon mailing, the affidavit of plaintiffs attorney stating that he was convinced that his office did not receive the order of preclusion does not raise an issue of fact whether proper service was made (see, Engel v Lichterman, 62 NY2d 943, 944, affg 95 AD2d 536). In his affidavit opposing this motion, plaintiffs attorney did not raise any issue concerning the validity of the affidavit of service and he did not contend that the order was not mailed.

In the absence of an affidavit setting forth a justifiable excuse for the delay and merit to the action, the court should not have vacated the order of preclusion and it should have granted defendant’s motion for summary judgment dismissing the complaint. (Appeal from order of Supreme Court, Onondaga County, Reagan, J.—summary judgment.) Present—Den-man, J. P., Boomer, Pine, Balio and Lawton, JJ.

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Order unanimously reversed on the law without costs, cross motion denied, motion granted, and complaint dismissed. Memorandum: The affidavit of service by mail raised a presumption that proper mailing occurred, and because service was complete upon mailing, the affidavit of plaintiffs attorney stating that he was convinced that his office did not receive the order of preclusion does not raise an issue of fact whether proper service was made (see, Engel v Lichterman, 62 NY2d 943, 944, affg 95 AD2d 536). In his affidavit opposing this motion, plaintiffs attorney did not raise any issue concerning the validity of the affidavit of service and he did not contend that the order was not mailed.

In the absence of an affidavit setting forth a justifiable excuse for the delay and merit to the action, the court should not have vacated the order of preclusion and it should have granted defendant’s motion for summary judgment dismissing the complaint. (Appeal from order of Supreme Court, Onondaga County, Reagan, J.—summary judgment.) Present—Den-man, J. P., Boomer, Pine, Balio and Lawton, JJ.

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Bluebook (online)

168 A.D.2d 1006, 564 N.Y.S.2d 947, 1990 N.Y. App. Div. LEXIS 16624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/precourt-v-kyanka-nyappdiv-1990.

Opinion

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