ONE 56 STREET CORPORATION v. Decima Fagan et al., Intervenors-Respondents. (2025)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered March 4, 2024, which, to the extent appealable, granted plaintiff's motion to renew and, upon renewal, adhered to the order, same court and Justice, entered November 3, 2023, which granted the motion of Decima Fagan, Edward T. Fagan, Seretta Fagan a/k/a Seretta Fagan–Lowe (collectively, the Heirs) to vacate a default judgment, unanimously affirmed, without costs.  Appeal from November 3, 2023 order, unanimously dismissed, without costs, as superseded by the appeal from the subsequent order.

The court properly granted the Heirs’ motion to vacate the default judgment on the finding that plaintiff commenced this action when defendants Henry Fagan and Rosalina Fagan were already deceased (see Marte v. Graber, 58 A.D.3d 1, 3, 867 N.Y.S.2d 71 [1st Dept. 2008]).  Because this presents a jurisdictional defect (see id.;  see also Maldonado v. Law Off. of Mary A. Bjork, 64 A.D.3d 425, 426, 882 N.Y.S.2d 118 [1st Dept. 2009]), the proper ground for vacating the default judgment is lack of jurisdiction under CPLR 5015(a)(4).  Accordingly, the Heirs did not need to provide a reasonable excuse for their default or assert a potentially meritorious defense (see Cipriano v. Hank, 197 A.D.2d 295, 298, 610 N.Y.S.2d 523 [1st Dept. 1994];  Boorman v. Deutsch, 152 A.D.2d 48, 51, 547 N.Y.S.2d 18 [1st Dept. 1989], lv dismissed 76 N.Y.2d 889, 561 N.Y.S.2d 550, 562 N.E.2d 875 [1990]).  We reject plaintiff's argument, raised for the first time on appeal in its reply brief, that naming “John Doe” defendants in the complaint's caption was sufficient to avail itself of CPLR 1024, where plaintiff failed to show that it conducted a diligent inquiry into the Heirs’ identities before relying on the “John Doe” caption, or that it effectively served the Heirs (see e.g. Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 [1st Dept. 2007];  Tucker v. Lorieo, 291 A.D.2d 261, 262, 738 N.Y.S.2d 33 [1st Dept. 2002]).

We have considered plaintiff's remaining arguments and find them unavailing.