Errol R. Alexander, et al., appellants, v. New York City Transit Authority, defendant third-party plaintiff-respondent;  L.A. Wenger Contracting Co., Inc., third-party defendant-respondent (and a fourth-party action). (2010)

Submitted-December 2, 2009

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated January 21, 2009, which denied their motion, in effect, pursuant to CPLR 5015(a)(1) to vacate so much of a judgment of the same court (Knipel, J.) entered July 9, 2004, as, upon an order of the same court dated September 4, 2003, granting the separate unopposed motions of the defendant third-party plaintiff and the third-party defendant, inter alia, pursuant to CPLR 3126 to dismiss the complaint, dismissed the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs' attorney was served with a default judgment with notice of entry on September 3, 2004.   Since the plaintiffs did not make their present motion, in effect, pursuant to CPLR 5015(a)(1) to vacate so much of the default judgment as dismissed the complaint until more than four years after the default judgment was served upon their attorney, the motion was properly denied as untimely (see CPLR 5015[a][1];  Terlizzese v Robinson's Custom Serv., Inc., 25 AD3d 547, 548;  cf.  Hartcorn v. Hartcorn, 299 A.D.2d 395;  Kachar v. Berlin, 296 A.D.2d 479;  Nahmani v. Town of Ramapo, 262 A.D.2d 291).

RIVERA, J.P., COVELLO, ANGIOLILLO, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court