Soggs v. Crocco

184 A.D.2d 1021

Opinion

Order unanimously reversed on the law with costs, motion granted, default judgment vacated and defendant’s time to serve an answer extended to 20 days after service of a copy of the order herein with notice of entry. Memorandum: It was error for the court sua sponte to grant a default judgment when plaintiff did not seek such relief (see, Phoenix Enters. Ltd. Partnership v Insurance Co., 130 AD2d 406, 407) and did not submit the proof required under CPLR 3215 (e). In his papers, plaintiff specifically requested summary judgment, not judgment by default. Defendant was not provided notice that a default judgment could be granted (see, CPLR 3215 [f] [1]). Because the default judgment was entered without compliance with the statutory requirements, it is a nullity and must be vacated (see, Marazita v Nelbach, 91 AD2d 604; see also, Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928; Maidenbaum v Ellis Hosp., 47 AD2d 683). Further, the court abused its discretion in denying defendant’s motion to vacate the default and extend the time to answer. Plaintiff was not prejudiced by the default in answering and defendant showed a meritorious defense and a reasonable excuse for the short delay (see, Schlackman v Martin, 32 AD2d 822).

Plaintiff has made no showing of circumstances that would require security and we decline to require an undertaking as a condition of the vacatur of the default judgment (see, Raji v Souri, 99 AD2d 433; Mark IV Homes v Evans Gardens, 57 AD2d 701). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Vacate Default Judgment.) Present— Denman, P. J., Green, Balio, Boehm and Fallon, JJ.