Tynan v. O'Reilly

Appellate Terms of the Supreme Court of New York

Tynan v. O'Reilly

79 Misc. 2d 167

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 28, 1974

StatusPublished

This text of 79 Misc. 2d 167 (Tynan v. O'Reilly) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tynan v. O'Reilly, 79 Misc. 2d 167 (N.Y. Ct. App. 1974).

Pincite

Opinion

Memoranda. Matter remanded to the court below for a hearing on the issue of service, pending the outcome of which the appeal is held in abeyance.

In view of the conflicting affidavits, the validity of the motion for summary judgment in lieu of complaint cannot be resolved without a hearing. We note, however, that if the defendant [168]*168was personally served, the return date of the motion was timely (CCA §§ 1004, 402).

(January 28, 1974)

Order reversed, with $10 costs, judgment vacated and motion for summary judgment in lieu of complaint denied.

The court below has found that service of the moving papers was not made on the defendant.

Groat, P. J., and Cone, J., concur; Rinaldi, J., taking no part.

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Memoranda. Matter remanded to the court below for a hearing on the issue of service, pending the outcome of which the appeal is held in abeyance.

In view of the conflicting affidavits, the validity of the motion for summary judgment in lieu of complaint cannot be resolved without a hearing. We note, however, that if the defendant [168]*168was personally served, the return date of the motion was timely (CCA §§ 1004, 402).

(January 28, 1974)

Order reversed, with $10 costs, judgment vacated and motion for summary judgment in lieu of complaint denied.

The court below has found that service of the moving papers was not made on the defendant.

Groat, P. J., and Cone, J., concur; Rinaldi, J., taking no part.

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Bluebook (online)

79 Misc. 2d 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tynan-v-oreilly-nyappterm-1974.