Opinion
2001-09965
Submitted October 2, 2002
October 21, 2002.
In an action to recover damages for personal injuries, the defendants Nicholas LiGreci and John T. LiGreci appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated October 12, 2001, which granted the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate so much of an order of the same court dated July 30, 2001, as, upon her default, granted their motion for summary judgment dismissing the complaint insofar as asserted against them.
Squires, Cordrey Noble, New York, N.Y. (Stephen M. Knudsen of counsel), for appellants.
Michael D. DiMauro, Staten Island, N.Y. (Kuharski Levitz, LLP [Lonny R. Levitz] of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The appellants failed to give the plaintiff timely notice of their motion for summary judgment (see CPLR 2103[b][2]; 2214[b]; cf Capoccia v. Brognano, 132 A.D.2d 833). 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 (see Welch v. State, 261 A.D.2d 537; Golden v. Golden, 128 A.D.2d 672; Adames v. New York City Tr. Auth., 126 A.D.2d 462; Burstin v. Public Serv. Mut. Ins. Co., 98 A.D.2d 928). Furthermore, the plaintiff set forth facts sufficiently establishing that her cause of action is meritorious (see Trincere v. County of Suffolk, 90 N.Y.2d 976; Anamdi v. Anugo, 229 A.D.2d 408, 409). Accordingly, the Supreme Court properly granted the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate her default in answering the appellants' motion for summary judgment.
SANTUCCI, J.P., SMITH, GOLDSTEIN, H. MILLER and MASTRO, JJ., concur.