985 HERKIMER STREET LLC v. HOBSON GREENE (2023)

The following papers were read on this motion: Notice of motion, Affidavit in support, Exhibits A-E, affidavit of service.

Upon the foregoing papers, and having heard oral argument from Defendant pro se on the record,¹ and due deliberation having been had thereon,

It is hereby ORDERED as follows:

Defendant's motion for summary judgment and to cancel the lis pendens on the subject property is DENIED. Defendant has failed to provide an adequate affidavit of service, establishing that the motion papers were properly served on Plaintiff. “A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard” (CPLR 2214 [b] [emphasis added]). Furthermore, “every paper filed in court shall have annexed thereto appropriate proof of service on all parties where required ․” (22 NYCRR § 202.5). “Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion and deprives the court of jurisdiction to entertain the motion [citations omitted]” (Welch v State of New York, 261 AD2d 537, 538 [2d Dept 1999]). Defendant movant here has filed with the Court a document purporting to be an affidavit of service. Said affidavit of service indicates that service was effectuated via overnight FedEx delivery to Plaintiff's counsel (who, by the way, did not appear at oral argument). However, said affidavit is entirely silent as to which, if any, of the required documents were included in the purported service. The affidavit was preprinted on a form which had space for filling in “the following papers,” but nothing was inserted. Accordingly, Defendant's motion is denied in its entirety.

FOOTNOTES

1.   The parties are reminded of the provisions requiring that an opinion or decision be included in the record on appeal should one be taken (see CPLR 5526; 22 NYCRR 1250.7 [b] [4], [d] [1] [iii]). Transcripts of oral argument may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.