NOWAK v. OKLAHOMA LEAGUE FOR THE BLIND (2001)

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

Todd NOWAK, Plaintiff-Respondent-Appellant, v. OKLAHOMA LEAGUE FOR THE BLIND, Defendant-Appellant-Respondent.

Decided: December 21, 2001

PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER and BURNS, JJ.

Heath J. Szymczak, for defendant-appellant-respondent. John A. Collins, for plaintiff-respondent-appellant.

Supreme Court erred in denying the motion of defendant seeking to vacate a prior order on liability entered upon its default and a money judgment entered upon its default. With the exception of circumstances not present here, where a plaintiff seeks to obtain a default judgment, “any defendant who has appeared is entitled to at least five days' notice of the time and place of the application” (CPLR 3215[g][1] ). It is undisputed that plaintiff failed to provide defendant with such notice. That failure deprived the court of jurisdiction to entertain plaintiff's application, and thus the order on liability and the money judgment are null (see, Adames v. New York City Tr. Auth., 126 A.D.2d 462, 510 N.Y.S.2d 610; Tomczak v. Szczur, 56 A.D.2d 737, 392 N.Y.S.2d 745; see also, Matter of Allstate Ins. Co. v. Phillips, 128 A.D.2d 518, 519, 512 N.Y.S.2d 451).

Order unanimously reversed on the law without costs, motion granted and default order and judgment vacated.

MEMORANDUM:

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