Torian v. Allstate Insurance

92 A.D.2d 1042, 461 N.Y.S.2d 553, 1983 N.Y. App. Div. LEXIS 17446

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1983
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered May 3,1982 in Albany County, which granted defendant’s motion to vacate a default judgment entered against it. Plaintiff, a physician, treated one Liane Castiglione for injuries which she sustained in an automobile accident on January 4, 1976, and he instituted the present action against defendant to recover for his services under the no-fault benefits provision of Liane Castiglione’s automobile liability insurance policy with defendant. Defendant did not appear in the action in a timely manner, and a default judgment was taken against it by plaintiff and entered on January 27, 1982. Special Term subsequently granted a motion by defendant to vacate the default judgment, and the instant appeal ensued. The challenged order of Special Term should be affirmed. Plaintiff concedes that, in his application for a default judgment, the affidavit of the facts constituting the claim was made by his attorney and not by a party as required by CPLR 3215 (subd [e]). Such being the case, the default judgment was a nullity which was properly vacated 0Georgia Pacific Corp. v Bailey, 77 AD2d 682), and plaintiff’s filing of the required affidavit on December 6,1982, many months after the judgment had been vacated, was obviously an ineffective attempt to cure the earlier defect in his pleadings. We need reach no other issue. Order affirmed, with costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.