TYNAN v. O'REILLY

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 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.