KUMER v. PASSAFIUME

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Supreme Court, Appellate Division, Second Department, New York.

Norman KUMER, respondent, v. Rudolph PASSAFIUME, et al., appellants.

Decided: February 22, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. Marvin E. Kramer & Associates, P.C., Garden City, N.Y. (Thomas W. Pragias of counsel), for appellants. Lehrman, Kronick & Lehrman, LLP, White Plains, N.Y. (Mark A. Guterman of counsel), for respondent.

In an action to recover money due under promissory notes and a guaranty, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated January 5, 1998, as denied their motion to vacate a judgment of the same court, entered May 12, 1997, upon their default in appearing or answering.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, with costs, the motion is granted, and the judgment is vacated.

The plaintiff obtained a judgment against the defendants for the relief demanded in the complaint by submitting a “Statement for Judgment” to the Clerk of the Supreme Court, Nassau County, which stated, inter alia, that the defendants had failed to appear or answer the complaint dated February 25, 1997.   The defendants then moved for leave to vacate the judgment, and annexed to their motion papers an affidavit of service of the answer dated March 17, 1997.

Since the defendants submitted evidence that they did in fact serve an answer in a timely manner, the defendants did not default in any respect, and the Supreme Court should have granted their motion to vacate the default judgment.   Under the circumstances, the defendants were not required to offer an excuse for the purported default and a meritorious defense (see, Uy v. North Shore Univ. Hosp., 247 A.D.2d 607, 669 N.Y.S.2d 228).

MEMORANDUM BY THE COURT.

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