Wood v. Ford

78 A.D.2d 585, 432 N.Y.S.2d 572, 1980 N.Y. App. Div. LEXIS 12978

Opinion

Order unanimously vacated, without costs, in accordance with the following memorandum: For lack of jurisdiction County Court erred in entertaining defendant’s motion to vacate the default judgment entered in City Court. The fact that a transcript of the judgment had been filed with the County Clerk for enforcement purposes did not make it a County Court judgment. Thus, a motion to vacate the judgment must be made to the court that rendered it (CPLR 5015, subd [a]; Brenner v Arterial Plaza, 29 AD2d 815; Weichert v Kirnie, 16 AD2d 744; Matter of Voccola v Shilling, 88 Misc 2d 103, 105-109, affd 57 AD2d 931; Siegel, NY Practice, § 422, p 562). Since a motion to vacate a judgment entered without jurisdiction may be made at any time to the court which rendered it, the vacatur of the order appealed from is without prejudice to defendant renewing his motion in City Court. Plaintiff is stayed for a period of 20 days from proceeding to enforce the judgment. (Appeal from order of Monroe County Court—vacate default judgment.) Present—Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.