Kaiser v. J & S Realty, Inc.

194 A.D.2d 1034, 600 N.Y.S.2d 642, 1993 N.Y. App. Div. LEXIS 6573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1993
• Status: Published

Opinion

Mercure, J.

Appeal from an order of the Supreme Court (Williams, J.), entered April 21, 1992 in Sullivan County, which, inter alia, denied defendant’s motion to vacate a default judgment entered against it.

In June 1988, judgment was entered in favor of plaintiffs upon defendant’s default in answering or appearing. Defendant’s subsequent oral motion to vacate the default judgment upon the ground that it was never served with the summons and complaint was granted by Supreme Court. Upon appeal, we reversed because the record contained no evidence in support of the motion (173 AD2d 920). Defendant has now made a second motion for the same relief upon the same ground. Supreme Court denied the motion, reasoning that this Court’s denial of the initial motion was upon the merits and defendant failed to make the requisite showing for renewal thereof. Defendant appeals.

There must be a reversal. In view of the fact that our denial of defendant’s motion was based upon a mere procedural error, Supreme Court abused its discretion in denying renewal upon correction of the error (see, Lauer v Rapp, 190 AD2d 778; S & D Petroleum Co. v Tamsett, 144 AD2d 849; Walsh v Smith, 50 AD2d 997; cf., Zebrowski v Pearl Kitchens, 172 AD2d 972). On the present application, defendant came forward with a competent evidentiary showing that it was never served with the summons and complaint and, thus, that plaintiffs never obtained personal jurisdiction over it. Accordingly, Supreme Court should have granted the motion to vacate the default judgment.

Weiss, P. J., Levine, Mahoney and Casey, JJ., concur. Ordered that the order is reversed, on the law, with costs, motion to renew granted and, upon renewal, motion to vacate default judgment granted.