Union National Bank v. Davis

67 A.D.2d 1034, 413 N.Y.S.2d 489, 1979 N.Y. App. Div. LEXIS 10842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1979
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered March 16, 1978, which granted defendant’s motion to vacate a default judgment. Default judgments are not favored, since the law prefers that issues be disposed of upon the merits (see Ballard v Billings & Spencer Co., 36 AD2d 71, 76). Accordingly, where a default judgment is entered without compliance with the requirements therefor, that judgment is a nullity and must be vacated (Red Creek Nat. Bank v Blue Star Ranch, 58 AD2d 983, 984). CPLR 3215 (subd [e]) provides that the clerk is authorized to enter a default judgment against a defendant only when the proof of service is accompanied by proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Here, the affidavit was made by plaintiff’s attorney rather than one of plaintiff’s officers and is, therefore, not in compliance with the requirements of CPLR 3215 (subd [e]). Thus, we refrain from considering the issues of excusable default and the presence of a meritorious defense, the grounds relied upon by Special Term in granting defendant’s motion (see Woodstock Lake Assoc, v Pleasure Crest Corp., 65 AD2d 867). Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.