Thursday, November 1, 2012

Improper service of an order to show cause.



Practice point: The absence of proper service of an order to show cause is a sufficient and complete excuse for a default on the motion, and deprives the court of jurisdiction to entertain the motion.

Student note: Since the court was deprived of jurisdiction to entertain the plaintiff's motion, the order granting the motion, and the judgment entered upon that order, were nullities and must be vacated.

Case: Crown Waterproofing, Inc. v. Tadco Constr. Corp., NY Slip Op 07083 (2d Dept. 2012).


Tomorrow’s issue: Motion to dismiss for failure to state a cause of action.