McDermott v. Hoenig

Appellate Division of the Supreme Court of New York

McDermott v. Hoenig

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

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

DecidedJune 30, 1969

StatusPublished

Cited by10 cases

This text of 32 A.D.2d 838 (McDermott v. Hoenig) 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

McDermott v. Hoenig, 32 A.D.2d 838, 302 N.Y.S.2d 280, 1969 N.Y. App. Div. LEXIS 3548 (N.Y. Ct. App. 1969).

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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 [839]*839neglect or a meritorious defense. Christ, Acting P. J., Brennan, Hopkins, Munder and Kleinfeld, JJ., concur.

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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 [839]*839neglect or a meritorious defense. Christ, Acting P. J., Brennan, Hopkins, Munder and Kleinfeld, JJ., concur.

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Bluebook (online)

32 A.D.2d 838, 302 N.Y.S.2d 280, 1969 N.Y. App. Div. LEXIS 3548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-hoenig-nyappdiv-1969.

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