Justice Steven Jaeger
Defendants sought an order vacating a prior decision which granted, upon default, plaintiff Fidelity & Deposit Company’s motion for summary judgment in lieu of complaint. Fidelity obtained summary judgment predicated on a general indemnity agreement and an alleged Pennsylvania confession of judgment upon defendants’ default. Defendants claimed they relocated their business, but failed to update a new address with the Secretary of State. They claimed the address where process was served was not the office of a construction company, but a massage parlor. The court temporarily stayed enforcement proceedings pending determination of the motion. It concluded plaintiff failed to meet its burden of establishing that defendant was properly served, stating Fidelity’s motion was made returnable before the summons, notice of motion, and supporting motion papers were even served. The court stated it has been held a failure to give a defendant the statutorily mandated time to appear and answer a motion for summary judgment in lieu of complaint compelled not only a denial of the motion, but dismissal of the action. Thus, Mat Builders Inc.’s motion to vacate its default, and for dismissal was granted.
