Goodyear v. Weinstein

Appellate Division of the Supreme Court of New York

Goodyear v. Weinstein

224 A.D.2d 387, 638 N.Y.S.2d 108, 1996 N.Y. App. Div. LEXIS 891

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 5, 1996

StatusPublished

Cited by5 cases

This text of 224 A.D.2d 387 (Goodyear v. Weinstein) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goodyear v. Weinstein, 224 A.D.2d 387, 638 N.Y.S.2d 108, 1996 N.Y. App. Div. LEXIS 891 (N.Y. Ct. App. 1996).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rutledge, J.), dated October 17, 1994, which granted the defendants’ motion (1) to vacate an order of the same court dated June 7, 1994, granting the plaintiffs motion for leave to enter a default judgment and for an inquest on the issue of damages and (2) to allow the defendants to interpose an answer.

Ordered that the order is affirmed, with costs.

The record indicates, and the plaintiff does not controvert, that the plaintiffs motion for leave to enter a default judgment was not based on either a verified complaint or an affidavit by a party as required by CPLR 3215 (f). Under these circumstances, entry of a default judgment would be erroneous and the judgment would be a nullity (see, Gerhardt v Salacqua Contr. Co., 181 AD2d 719; Joosten v Gale, 129 AD2d 531, 535; Income Prop. Consultants v Lumat Realty Corp., 88 AD2d 582). Accordingly, we need not consider whether the defendants established that they had a reasonable excuse for their default and a meritorious defense (see, Income Prop. Consultants v Lumat Realty Corp., supra). O’Brien, J. P., Copertino, Santucci and Krausman, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rutledge, J.), dated October 17, 1994, which granted the defendants’ motion (1) to vacate an order of the same court dated June 7, 1994, granting the plaintiffs motion for leave to enter a default judgment and for an inquest on the issue of damages and (2) to allow the defendants to interpose an answer.

Ordered that the order is affirmed, with costs.

The record indicates, and the plaintiff does not controvert, that the plaintiffs motion for leave to enter a default judgment was not based on either a verified complaint or an affidavit by a party as required by CPLR 3215 (f). Under these circumstances, entry of a default judgment would be erroneous and the judgment would be a nullity (see, Gerhardt v Salacqua Contr. Co., 181 AD2d 719; Joosten v Gale, 129 AD2d 531, 535; Income Prop. Consultants v Lumat Realty Corp., 88 AD2d 582). Accordingly, we need not consider whether the defendants established that they had a reasonable excuse for their default and a meritorious defense (see, Income Prop. Consultants v Lumat Realty Corp., supra). O’Brien, J. P., Copertino, Santucci and Krausman, JJ., concur.

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Bluebook (online)

224 A.D.2d 387, 638 N.Y.S.2d 108, 1996 N.Y. App. Div. LEXIS 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodyear-v-weinstein-nyappdiv-1996.

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