Nationstar Mortgage, LLC v. Martin

2017 NY Slip Op 8880, 156 A.D.3d 533, 65 N.Y.S.3d 715

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2017
• Docket: 5008N
• Status: Published

Opinion

Appeal from order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered March 28, 2016, which granted plaintiff’s ex parte application for a default judgment and order of reference, deemed an application by defendant Silvia Martin pursuant to CPLR 5704 to vacate said order, and, so considered, said order unanimously vacated, without costs, and plaintiff’s ex parte application for a default judgment and order of reference denied, without prejudice to renewal upon notice to defendant as required by CPLR 3215 (g) (1).

Defendant’s appearance in this action by counsel at three settlement conferences was acknowledged in the motion court’s settlement conference orders. As an appearing party, defendant was entitled to five days notice of the default motion (CPLR 3215 [g]; Walker v Foreman, 104 AD3d 460 [1st Dept 2013]). Accordingly, plaintiff’s ex parte motion seeking a default judgment and order of reference should have been denied. We exercise our authority under CPLR 5704 (a) to vacate the order granting the motion, and to deny the relief requested, without prejudice to renewal upon proper notice to defendant.

Concur—■ Acosta, P.J., Tom, Webber, Gesmer and Singh, JJ.