Rosato v. Ricciardi

174 A.D.2d 937, 571 N.Y.S.2d 633, 1991 N.Y. App. Div. LEXIS 8644

Opinions

—Weiss, J.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Dickinson, J.), entered April 18, 1990 in Putnam County, which, inter alia, denied a motion by various defendants to vacate a default judgment entered against them.

In this action to establish ownership of certain real property located in the Town of Kent, Putnam County, service of the summons and verified complaint was made pursuant to CPLR 308 (4) by substituted service, commonly called "nail and mail service”, upon defendants Marie Ricciardi, Christine Mercora and Fredrick D’Arco (hereinafter collectively referred to as defendants) on June 6, 1989.

* It is conceded that the affidavits of service were not filed in the County Clerk’s office within 20 days as required by CPLR 308 (4). Plaintiff made an ex parte application to Supreme Court for a default judgment and simultaneously filed affidavits of service of the summons and complaint. Supreme Court granted plaintiff’s application and the judgment was entered on August 14, 1989. Defendants moved for vacatur by order to show cause dated February 28, 1990 and plaintiff cross-moved for an order permitting filing of the proof of service nunc pro tunc. Supreme Court denied defendants’ motion and granted plaintiff’s cross motion. Defendants have appealed.

The disposition of this appeal does not require extensive discussion. The failure to timely file proof of service is concededly a "mere irregularity” without jurisdictional implications (see, McCormack v Gomez, 137 AD2d 504, 505; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C308:4, at 311) and may be cured by an order pursuant to CPLR 2001 and 2004. Here, the required proof of service was not filed until the default judgment was sought, well beyond 20 days after the nailing and mailing procedure. Plaintiff did not seek leave permitting late filing until she responded to defendants’ application for vacatur in March 1990, at which time she cross-moved for an order permitting the untimely filing nunc pro tunc.

By granting plaintiff relief nunc pro tunc Supreme Court not only gave plaintiff a remedy, but made that relief retroactive to defendants’ prejudice by placing defendants in default as of a date prior to the order. It also gave effect to a default judgment which prior thereto was a nullity requiring vacatur (see, Red Cr. Natl. Bank v Blue Star Ranch, 58 AD2d 983, 984; see also, Wiley v Lipset, 140 AD2d 336, 337; R. L. C. Investors v Zabski, 109 AD2d 1053; Union Natl. Bank v Davis, 67 AD2d 1034). Accordingly, the default judgment should have been vacated, plaintiff granted permission to file the proof of service pursuant to CPLR 2001 and defendants given an opportunity to answer.

Mikoll, Levine and Crew III, JJ., concur.

Defendants Georgianna Feola and Margaret Cipollone are not parties to this appeal.