Georgia Pacific Corp. v. Bailey

77 A.D.2d 682, 429 N.Y.S.2d 787, 1980 N.Y. App. Div. LEXIS 12406

Opinion

Appeal, in Action No. 1, from an order of the County Court of Saratoga County, entered August 27, 1979, and, in Action No. 2, from an order of the same court, entered January 5, 1980, denying defendants’ motions to vacate default judgments entered against them. These two actions were brought to recover on contracts for goods sold and delivered. The defendants did not appear and default judgments were taken. Special Term denied defendants’ motions to vacate the default judgments. This appeal ensued, and defendants urge reversal on the grounds that service was defective and that the judgments are void for failure to file adequate papers pursuant to CPLR 3215 (subd [e]). We will consider the latter contention first. The record reveals that the affidavits of the facts constituting the claims were made by plaintiffs’ attorney and not by a party, as required by the statute. Under these circumstances, each of the judgments is a nullity and must be vacated (Union Nat. Bank v Davis, 67 AD2d 1034). In light of this determination, it is unnecessary to consider any other issue. The orders must be reversed and the default judgments vacated. Orders reversed, on the law, with costs, and motions granted. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.