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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2001
• Status: Published

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.