RIVERA v. MARTINUCCI (2018)

ORDERED that the order entered December 19, 2016 is affirmed, without costs.

Plaintiff commenced this small claims action to recover $5,000 as a result of damage to his automobile caused by defendant's alleged negligence. After a nonjury trial, the Civil Court entered a judgment on June 30, 2016 dismissing the action. Plaintiff's subsequent motion to vacate the judgment was granted on default by order of the Civil Court (Richard Montelione, J.) dated August 23, 2016. Thereafter, defendant moved to vacate the default order on the ground, among others, that service of plaintiff's motion had been improper. By order entered December 19, 2016, the Civil Court (Richard Montelione, J.) granted defendant's motion, stating that it “vacates its prior order dated August 23, 2016 which granted plaintiff's motion on default as having been improvidently granted in light of Defendant's submissions which indicated her lack of notice of Plaintiff's order to show cause and in light of the fact that a full trial occurred in this matter.”

Inasmuch as service of plaintiff's motion to vacate the judgment was not done in accordance with statutory requirements (see CPLR 2103 [c] ), plaintiff's motion should not have been considered. Consequently, defendant's motion to vacate the August 23, 2016 default order was properly granted.

Accordingly, the order entered December 19, 2016 is affirmed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.