Eustaquio Taurino Sosa, respondent, v. Jacinto Gonzaga, defendant;  Thirty Two Nineteen, Inc., nonparty-Appellant. (2026)

Submitted—March 31, 2026

DECISION & ORDER

In an action, in effect, to recover damages for breach of contract, nonparty Thirty Two Nineteen, Inc., appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), dated December 19, 2022.  The order granted the plaintiff's motion for a preliminary injunction and to restore the action to the active calendar.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for a preliminary injunction and to restore the action to the active calendar is denied.

The plaintiff commenced this action, in effect, to recover damages for breach of an oral contract pursuant to which the defendant's name would appear on a deed and mortgage for the subject real property, but the plaintiff would provide all funds for the purchase of the property and would be the one and only true owner of the property.  The plaintiff alleged that the defendant instructed the tenants who resided in the property to stop paying rent to the plaintiff.  The plaintiff further alleged that the defendant sold the property, in violation of a court order, to Silver Street, Inc., which, in turn, sold the property to Thirty Two Nineteen, Inc. (hereinafter Thirty Two), in November 2018.  The action was “marked off” the calendar in February 2020.

In June 2022, the plaintiff moved, by order to show cause, for a preliminary injunction and to restore the action to the active calendar.  In an order dated December 19, 2022, the Supreme Court granted the motion.  Thirty Two appeals.

The Supreme Court erred in granting the plaintiff's motion for a preliminary injunction and to restore the action to the active calendar.  The mode of service provided for in an order to show cause is jurisdictional in nature and must be literally followed (see Transelco, Inc. v Sunrise Jewelers of NY, Inc., 244 AD3d 1021, 1022;  Gonzalez v. Haniff, 144 AD3d 1087, 1088).  The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion (see Gonzalez v. Haniff, 144 AD3d at 1088;  Crown Waterproofing, Inc. v. Tadco Constr.  Corp., 99 AD3d 964, 965).  Here, since the plaintiff failed to comply with the directives in the order to show cause, the court was without jurisdiction to entertain the motion (see Transelco, Inc. v Sunrise Jewelers of NY, Inc., 244 AD3d at 1022;  Boucan NYC Café, LLC v. 467 Rogers, LLC, 168 AD3d 904, 904).

In light of our determination, we need not reach Thirty Two's remaining contentions.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court