Natradeze v. Rubin

Appellate Division of the Supreme Court of New York

Natradeze v. Rubin

33 A.D.3d 535, 822 N.Y.S.2d 541

Appellate Division of the Supreme Court of the State of New York·Decided October 26, 2006·Published·Cited by 5 cases

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 11, 2005, which denied defendant Rubin’s motion to vacate her default, unanimously reversed, on the law, without costs, and the motion granted.

The default order entered was a nullity inasmuch as plaintiffs’ default motion papers failed to include either a verified complaint or an affidavit prepared by one having personal knowledge of the facts at issue (see DeLeon v Sonin & Genis, 303 AD2d 291, 292 [2003]). Although Rubin did not appear on plaintiffs motion seeking a default, and for the first time on appeal she challenges the adequacy of plaintiffs motion papers seeking a default, the issue can be reached as it is one that can be decided as a matter of law from the face of the record (see Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Given our conclusion that the challenged order was a “nullity,” Rubin’s remaining arguments need not be reached. Concur—Saxe, J.P, Friedman, Williams, Catterson and Malone, JJ.

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Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 11, 2005, which denied defendant Rubin’s motion to vacate her default, unanimously reversed, on the law, without costs, and the motion granted.

The default order entered was a nullity inasmuch as plaintiffs’ default motion papers failed to include either a verified complaint or an affidavit prepared by one having personal knowledge of the facts at issue (see DeLeon v Sonin & Genis, 303 AD2d 291, 292 [2003]). Although Rubin did not appear on plaintiffs motion seeking a default, and for the first time on appeal she challenges the adequacy of plaintiffs motion papers seeking a default, the issue can be reached as it is one that can be decided as a matter of law from the face of the record (see Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Given our conclusion that the challenged order was a “nullity,” Rubin’s remaining arguments need not be reached. Concur—Saxe, J.P, Friedman, Williams, Catterson and Malone, JJ.

Natradeze v. Rubin, 33 A.D.3d 535, 822 N.Y.S.2d 541 (N.Y. Ct. App. 2006).

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