Financial Services Vehicle Trust v. Law Offices of Dente

86 A.D.3d 532, 926 N.Y.2d 326

Opinion

The defendant Katerina Arvanitakis (hereinafter the appellant) failed to give the plaintiff timely notice of her motion for leave to enter a judgment on her counterclaim against the plaintiff upon its purported default in replying to the counterclaim (see Bianco v LiGreci, 298 AD2d 482 [2002]). The plaintiff did not receive at least 13 days’ notice, the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b] ). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the court of jurisdiction to entertain the motion (see CPLR 5015 [a] [4]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748 [2009] ; Daulat v Helms Bros., Inc., 32 AD3d 410, 411 [2006]; Bianco v LiGreci, 298 AD2d 482 [2002]; Welch v State of New York, 261 AD2d 537, 538 [1999]). Since the Supreme Court was deprived of jurisdiction to entertain the motion, the resulting order dated February 24, 2010, and the judgment entered upon that order were nullities (see Bonik v Tarrabocchia, 78 AD3d 630, 632 [2010]; Bauerlein v Salvation Army, 74 AD3d 851, 857 [2010] ; Welch v State of New York, 261 AD2d at 538; Golden v Golden, 128 AD2d 672 [1987]). Accordingly, the plaintiffs motion to vacate both the order dated February 24, 2010, and the judgment was properly granted. Skelos, J.P., Dickerson, Hall, Austin and Miller, JJ., concur.