H. D. I. Diamonds, Inc. v. Frederick Modell, Inc.

86 A.D.2d 561, 446 N.Y.S.2d 283, 1982 N.Y. App. Div. LEXIS 15083

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1982
• Status: Published

Opinions

Order, Supreme Court, New York County (Pécora, J.), entered June 24, 1981, which, inter alia, granted the motion of defendants H. D. I. Diamonds, Inc., and Hampton Designs, Inc., to vacate a default judgment entered on October 11, 1979 in the sum of $56,365.20 against said defendants, reversed, on the law, with costs and disbursements, and the motion denied. On October 11, 1979 a judgment was entered upon default in favor of plaintiff Modell against defendants H. D. I. and Hampton. One week later, on October 18,1979, the judgment was paid and a satisfaction thereafter filed. Eleven months later, on September 15,1980, said defendants moved, by cross motion in a subsequent action in which they appeared as plaintiffs, to vacate their default. Special Term granted the motion. This was error. A judgment which is paid and satisfied of record ceases to have any existence since a defendant, by paying the amount due, extinguishes the judgment and the obligation thereunder. (Kamp v Kamp, 59 NY 212; Morris Plan Ind. Bank of N. Y. v Kraemer, 243 App Div 632; McCredy v Thrush, 37 App Div 465.) Thus, Special Term was without jurisdiction to vacate the judgment. Moreover, defendants failed to demonstrate a valid excuse for the default. Indeed, it appears that the default was willful. Nor do they justify the 11-month delay from the payment and satisfaction of the judgment in moving to vacate. In such circumstances the default should not have been vacated. (Cohen v Levy, 50 AD2d 1039; Back v Stern, 23 AD2d 837.) Concur — Murphy, P. J., Birns and Sullivan, JJ.