Rivera v. Martinucci

Appellate Terms of the Supreme Court of New York

Rivera v. Martinucci

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 2018

Docket2018 NYSlipOp 50945(U)

StatusPublished

This text of Rivera v. Martinucci (Rivera v. Martinucci) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rivera v. Martinucci, (N.Y. Ct. App. 2018).

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Opinion

Charlie Rivera, Appellant,

against

Patricia Martinucci, Respondent.

Charlie Rivera, appellant pro se. Mura & Storm, PLLC (Ryan M. Mura of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered December 19, 2016. The order granted defendant's motion to vacate an order of that court dated August 23, 2016 which had granted plaintiff's unopposed motion to vacate a judgment of that court that had been entered on June 30, 2016, after a nonjury trial, dismissing the complaint.

ORDERED that the order entered December 19, 2016 is affirmed, without costs.

Plaintiff commenced this small claims action to recover $5,000 as a result of damage to his automobile caused by defendant's alleged negligence. After a nonjury trial, the Civil Court entered a judgment on June 30, 2016 dismissing the action. Plaintiff's subsequent motion to vacate the judgment was granted on default by order of the Civil Court (Richard Montelione, J.) dated August 23, 2016. Thereafter, defendant moved to vacate the default order on the ground, among others, that service of plaintiff's motion had been improper. By order entered December 19, 2016, the Civil Court (Richard Montelione, J.) granted defendant's motion, stating that it "vacates its prior order dated August 23, 2016 which granted plaintiff's motion on default as having been improvidently granted in light of Defendant's submissions which indicated her lack of notice of Plaintiff's order to show cause and in light of the fact that a full trial occurred in this matter."

Inasmuch as service of plaintiff's motion to vacate the judgment was not done in accordance with statutory requirements (see CPLR 2103 [c]), plaintiff's motion should not have been considered. Consequently, defendant's motion to vacate the August 23, 2016 default order was properly granted.

Accordingly, the order entered December 19, 2016 is affirmed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 15, 2018

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Charlie Rivera, Appellant,

against

Patricia Martinucci, Respondent.

Charlie Rivera, appellant pro se. Mura & Storm, PLLC (Ryan M. Mura of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered December 19, 2016. The order granted defendant's motion to vacate an order of that court dated August 23, 2016 which had granted plaintiff's unopposed motion to vacate a judgment of that court that had been entered on June 30, 2016, after a nonjury trial, dismissing the complaint.

ORDERED that the order entered December 19, 2016 is affirmed, without costs.

Plaintiff commenced this small claims action to recover $5,000 as a result of damage to his automobile caused by defendant's alleged negligence. After a nonjury trial, the Civil Court entered a judgment on June 30, 2016 dismissing the action. Plaintiff's subsequent motion to vacate the judgment was granted on default by order of the Civil Court (Richard Montelione, J.) dated August 23, 2016. Thereafter, defendant moved to vacate the default order on the ground, among others, that service of plaintiff's motion had been improper. By order entered December 19, 2016, the Civil Court (Richard Montelione, J.) granted defendant's motion, stating that it "vacates its prior order dated August 23, 2016 which granted plaintiff's motion on default as having been improvidently granted in light of Defendant's submissions which indicated her lack of notice of Plaintiff's order to show cause and in light of the fact that a full trial occurred in this matter."

Inasmuch as service of plaintiff's motion to vacate the judgment was not done in accordance with statutory requirements (see CPLR 2103 [c]), plaintiff's motion should not have been considered. Consequently, defendant's motion to vacate the August 23, 2016 default order was properly granted.

Accordingly, the order entered December 19, 2016 is affirmed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 15, 2018

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Rivera v. Martinucci, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-martinucci-nyappterm-2018.