Tomczak v. Szczur

56 A.D.2d 737, 392 N.Y.S.2d 745, 1977 N.Y. App. Div. LEXIS 10919

Opinion

Order unanimously reversed, without costs, motion granted and judgment vacated. Memorandum: On November 13, 1973, more than one year after defendants defaulted by failing to submit an answer to plaintiffs’ personal injury complaint, plaintiffs obtained a default judgment which was subsequently entered on August 2, 1973. Inasmuch as more than one year had elapsed since defendants’ default, defendants were entitled to at least five days’ notice of the time and place of the motion for judgment (CPLR 3215, subd [f]). Plaintiffs’ failure to provide such notice necessitates vacatur of the default judgment. Defendants are required to serve their answer within 20 days of the entry of this order. (Appeal from order of Erie Supreme Court—vacate default judgment.) Present—Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ.