Belfiore v. Belfiore

57 A.D.3d 597, 868 N.Y.2d 545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2008
• Status: Published

Opinion

The parties entered into a stipulation of settlement but had not finally agreed upon certain financial figures when the Special Referee directed both parties to submit proposed findings of fact and judgments. Under the circumstances, the Special Referee’s instruction was, in effect, a direction to settle judgment, which contemplates notice to the opposing party with a copy of the proposed judgment and the opportunity to submit a counter proposal (see 22 NYCRR 202.48 [a], [c] [1]; Funk v Barry, 89 NY2d 364, 367 [1996]). The proposed judgment must be submitted with proof of service on the opposing party (see 22 NYCRR 202.48 [a], [c] [1]). Here, the plaintiff failed to produce proof of service of the proposed judgment which was ultimately signed by the Special Referee (see Brady v Brady, 271 AD2d [2000]). Thus, the plaintiff failed to rebut the defendant’s contention that he did not receive notice of settlement with a copy of the proposed judgment, and the defendant established excusable default sufficient to vacate the judgment entered upon his default (see CPLR 5015 [a] [1]; Daulat v Helms Bros., Inc., 32 AD3d 410 [2006]). Spolzino, J.P., Santucci, Miller, Dickerson and Eng, JJ., concur.