McDermott v. Hoenig

32 A.D.2d 838, 302 N.Y.S.2d 280, 1969 N.Y. App. Div. LEXIS 3548

Opinion

Appeal from an order of the Supreme Court, Putnam County, dated October 14, 1968, which denied appellants’ motion to vacate a default judgment entered by the clerk of said court against them. Order reversed, on the law and the facts, without costs, and appellants’ motion granted. It being undisputed that neither the complaint nor a notice pursuant to CPLR 305 (subd. [b]) was served with the summons, we are constrained to hold that the default judgment is a nullity. The clerk was without authority to enter the judgment absent proof of service of the summons and complaint or a summons and notice (CPLR 3215, subds. [a], [e]; Malone v. Citarella, 7 A D 2d 871). Except for this jurisdictional requirement, we would have affirmed the order because appellants failed to demonstrate either excusable neglect or a meritorious defense. Christ, Acting P. J., Brennan, Hopkins, Munder and Kleinfeld, JJ., concur.