Opinion
Argued April 7, 2000.
May 22, 2000.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated April 15, 1999, which denied its motion, among other things, to vacate a prior order of the same court, dated November 18, 1998, denying its motion to renew the defendant's prior motion to stay the action pending determination of an arbitration proceeding pending between the parties in California, which was granted by order of the same court dated May 19, 1998.
James F. Woods Associates, P.C., New York, N.Y. (Lance Perez of counsel), for appellant.
Strassberg Strassberg, P.C., New York, N.Y. (Robert Strassberg of counsel), for respondent.
Before: WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff's order to show cause seeking, inter alia, to vacate the prior order dated November 18, 1998, which was signed by Justice Jones on March 16, 1999, was required by its terms to be served upon the defendant's attorney pursuant to CPLR 2103(b)(6) by overnight mail. The attorney for the defendant means the defendant's attorney of record (see, Weinstein Korn Miller, N.Y. Civ. Prac., Sec. 2103.03). The defendant's New York counsel, its attorney of record, was never served with the plaintiff's motion papers. In addition, the record does not contain an affidavit of service evidencing any attempt by the plaintiff to properly serve its order to show cause. A motion that is not properly served must be denied (see, Joffe v. Rubenstein, 30 A.D.2d 949; Szuldiner v. City of New York, 18 A.D.2d 897).
In light of our determination we do not address the parties' remaining contentions.
FRIEDMANN, J.P., KRAUSMAN, LUCIANO and SCHMIDT, JJ., concur.