CONGREGATION CHAIM BARUCHA v. FRIEDMAN

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

CONGREGATION CHAIM BARUCHA, respondent, v. Aron FRIEDMAN, appellant.

Decided: May 26, 2009

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht of counsel), for appellant. Solomon Rosengarten, Brooklyn, N.Y., for respondent.

In an action to recover for damage to property, the defendant appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated October 29, 2008, which denied his motion to vacate a clerk's judgment of the same court entered May 19, 2008, upon his default in appearing and answering the complaint and, in effect, for leave to serve an answer.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was to vacate the clerk's judgment and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the defendant.

 In the instant action, the plaintiff seeks to recover damages it allegedly sustained as a result of the loss of certain allegedly “rare and valuable” books it loaned to the defendant, who defaulted in appearing and answering the complaint.   The defendant failed to establish a reasonable excuse for the default or a meritorious defense to the action (see CPLR 5015[a] [1];  Eugene DiLorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116).

 However, because the plaintiff is not seeking to recover a “sum certain” (CPLR 3215[a] ) from the defendant (see Gibbs v. Hoot Owl Sportsman's Club, 257 A.D.2d 942, 943, 684 N.Y.S.2d 359;  White v. Weiler, 255 A.D.2d 952, 953, 680 N.Y.S.2d 784), the clerk lacked the authority to enter the judgment at issue (see CPLR 3215[a];  Verde Elec. Corp. v. Federal Ins. Co., 50 A.D.3d 672, 673, 854 N.Y.S.2d 531;  Ayres Mem. Animal Shelter, Inc. v. Montgomery County Socy. for Prevention of Cruelty to Animals, 17 A.D.3d 904, 904-905, 793 N.Y.S.2d 608;  Jannon v. Van Buskirk, 227 A.D.2d 844, 642 N.Y.S.2d 402;  Maxwell v. First Port Jefferson Corp., 31 A.D.2d 813, 297 N.Y.S.2d 885).   Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was to vacate the clerk's judgment (see Verde Elec. Corp. v. Federal Ins. Co., 50 A.D.3d at 673, 854 N.Y.S.2d 531;  Maxwell v. First Port Jefferson Corp., 31 A.D.2d at 813, 297 N.Y.S.2d 885;  cf. Gibbs v. Hoot Owl Sportsman's Club, 257 A.D.2d 942, 943-944, 684 N.Y.S.2d 359;  Jannon v. Van Buskirk, 227 A.D.2d at 844-845, 642 N.Y.S.2d 402).

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