Zurel, U.S.A., Inc. v. Black

215 A.D.2d 554, 627 N.Y.S.2d 945, 1995 N.Y. App. Div. LEXIS 5166

Opinion

In an action to enforce a personal guarantee of a corporate debt, the defendant appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated March 11, 1994, which denied his motion to vacate a judgment dated August 18, 1992, entered upon the defendant’s default in timely interposing an answer.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the judgment is vacated, and the defendant’s answer, dated August 4, 1992, is deemed timely served.

Contrary to the defendant’s contention, the Supreme Court correctly concluded that the defendant was properly served with process in this case (see, Colon v Beekman Downtown Hosp., 111 AD2d 841). However, in the absence of either a verified complaint or an affidavit by the plaintiff setting forth "the facts constituting the claim, the default and the amount due”, as required by CPLR 3215 (e), the entry of a default judgment was erroneous (see, Gerhardt v Salacqua Contr. Co., 181 AD2d 719; Freccia v Carullo, 93 AD2d 281). Upon learning of the default judgment, the defendant acted with reasonable

dispatch in seeking to vacate it (cf., Freccia v Carullo, supra). Thus, the defendant’s motion to vacate the default judgment should have been granted. Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.