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Tynan v. O'Reilly

79 Misc. 2d 167 Court Supreme Court, Appellate Term, Second Department, Decision date 1974-01-28 English

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p. 167
Madeline R. Tynan, Respondent, v. John R. O’Reilly, Appellant.
Supreme Court, Appellate Term, Second Department,
August 6, 1973 and
January 28, 1974.
John R. O’Reilly, appellant pro se. Arthur Kaplan for respondent.

Memoranda. Matter remanded to the court below for a hearing on the issue of service, pending the outcome of which the appeal is held in abeyance.

In view of the conflicting affidavits, the validity of the motion for summary judgment in lieu of complaint cannot be resolved without a hearing. We note, however, that if the defendant

p. 168
was personally served, the return date of the motion was timely (CCA §§ 1004, 402).

(January 28, 1974)

Order reversed, with $10 costs, judgment vacated and motion for summary judgment in lieu of complaint denied.

The court below has found that service of the moving papers was not made on the defendant.

Groat, P. J., and Cone, J., concur; Rinaldi, J., taking no part.