Nowak v. Oklahoma League for the Blind

289 A.D.2d 995, 735 N.Y.S.2d 313, 2001 N.Y. App. Div. LEXIS 12570

Opinion

Order unanimously reversed on the law without costs, motion granted and default order and judgment vacated. Memorandum: Supreme Court erred in denying the motion of defendant seeking to vacate a prior order on liability entered upon its default and a money judgment entered upon its default. With the exception of circumstances not present here, where a plaintiff seeks to obtain a default judgment, “any defendant who has appeared is entitled to at least five days’ notice of the time and place of the application” (CPLR 3215 [g] [1]). It is undisputed that plaintiff failed to provide defendant with such notice. That failure deprived the court of jurisdiction to . entertain plaintiffs application, and thus the order on liability and the money judgment are null (see, Adames v New York City Tr. Auth., 126 AD2d 462; Tomczak v Szczur, 56 AD2d 737; see also, Matter of Allstate Ins. Co. v Phillips, 128 AD2d 518, 519). (Appeals from Order of Supreme Court, Erie County, Sconiers, J. — Vacate Order and Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Burns, JJ.