Worldcom, Inc. v. Dialing Loving Care, Inc.

269 A.D.2d 159, 702 N.Y.S.2d 76, 2000 N.Y. App. Div. LEXIS 1034

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Barry Cozier, J.), entered September 4, 1998, which, inter alia, granted plaintiff's motion for summary judgment on its cause of action for breach of contract, and, order, same court and Justice, entered on or about August 4, 1999, which denied defendants’ motion to vacate the above order and to dismiss the action for lack of jurisdiction, unanimously affirmed, with costs.

Plaintiffs motion for summary judgment was properly granted on the ground that defendants’ prior attorney’s affirmation in opposition to the motion contained only conclusory statements and unsubstantiated allegations that were patently insufficient to raise any issues of fact (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 342-343). Defendants’ subsequent motion to vacate the award of summary judgment on the ground that they were improperly served was properly denied, defendants having waived such defense when they failed to move on that ground within 60 days after serving their answer, and having failed to demonstrate undue hardship in urging incompetence of prior counsel as the reason for not having so moved (CPLR 3211 [e]; cf., Abitol v Schiff, 180 Misc 2d 949, 951). Concur — Sullivan, J. P., Williams, Mazzarelli, Wallach and Lerner, JJ.