Eliasco v. Eliasco

In the absence of an affidavit by the defendant stating that he was not served with the summons and complaint — the fact of the service and a description of the circumstances having been attested to by the affidavit in opposition — the moving papers are insufficient to raise any issue. Order vacating the service pending a reference to hear and report was unwarranted and must be reversed. As defendant is now overseas, he should be afforded a reasonable opportunity to answer or otherwise move with respect to the complaint. Settle order accordingly on notice. Concur — Botein, J. P., Rabin, McNally and Bergan, JJ.