Opinion
January 20, 1987
Appeal from the Supreme Court, New York County (Andrew R. Tyler, J.).
The failure to provide proper service of a motion deprives the court of jurisdiction to entertain the motion (Burstin v. Public Serv. Mut. Ins. Co., 98 A.D.2d 928), and any default judgment procured in the absence of valid service is a nullity. (Chase Manhattan Bank v. Carlson, 113 A.D.2d 734.) Defendant herein alleges by means of an affirmation from its attorney that it never received plaintiff's notice of motion to strike its answer. This is sufficient to overcome the presumption of service created by plaintiff's affidavit of service by mail. (Sport-O-Rama Health Fitness Center v. Centennial Leasing Corp., 100 A.D.2d 584. ) Accordingly, the Supreme Court was in error in denying defendant's motion to vacate its default without first referring the matter for a hearing to determine whether service was, in fact, properly effected upon defendant.
Concur — Murphy, P.J., Sandler, Carro, Milonas and Wallach, JJ.