WORLDCOM INC v. DIALING LOVING CARE INC (2000)

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.

 Plaintiff's 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, S.J. Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342-343, 357 N.Y.S.2d 478, 313 N.E.2d 776).   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, 691 N.Y.S.2d 753).

MEMORANDUM DECISION.