Hibbard v. Shaad

Order unanimously reversed, without costs, and motion granted. Memorandum: Special Term erred in denying defendant’s motion to vacate an order which granted summary judgment to plaintiff on the issue of liability only. It is conceded that service by mail of plaintiff’s motion papers seeking summary judgment did not comply with the time requirements of CPLR 2214 (subd [b]) and 2103 (subd [b], par 2) (see Irish Propane Corp. v Burnwell Gas Distrs., 25 AD2d 616). Summary judgment may not be granted against a defendant who fails to appear in response to a motion on which he did not receive the minimum notice required by statute (Morabito v Champion Swimming Pool Corp., 18 AD2d 706, 707). Plaintiff remains free, of course, to again seek summary relief upon proper notice. (Appeal from order of Supreme Court, Jefferson County, Lynch, J. — vacate default judgment.) Present — Dillon, P. J., Hancock, Jr., Green, O’Donnell and Schnepp, JJ.