| Calderock Joint Ventures, L.P. v Mitiku |
| 2007 NY Slip Op 09126 [45 AD3d 452] |
| November 20, 2007 |
| Appellate Division, First Department |
| Calderock Joint Ventures, L.P., Respondent, v BethlehemMitiku et al., Defendants, and Benyam Mitiku, Appellant. |
—[*1] Vlock & Associates, P.C., New York City (Steven P. Giordano of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 17, 2006,which, inter alia, denied defendant Benyam Mitiku's motion to vacate a deficiency judgment,unanimously affirmed, without costs.
Twelve years after failing to answer or appear in the underlying mortgage foreclosure action,which resulted in a deficiency judgment and a wage garnishment order against him, appellantmade a motion under CPLR 5015 (a) (4) to vacate the judgment, alleging that service of processof the 1994 summons and complaint had not been properly effectuated in accordance with the"nail and mail" provision of CPLR 308 (4). Finding the record "replete with evidence of[appellant's] lack of good faith and failure to timely assert his rights," the court declined toexercise its discretion to vacate the judgment. We affirm, but for different reasons.
A court's discretionary power under CPLR 5015 (a) to relieve a party from a judgment shouldnot be exercised where "the moving party has demonstrated a lack of good faith, or been dilatoryin asserting its rights" (Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 452[1987]). Appellant argues that where relief is sought under CPLR 5015 (a) (4) from a judgmentthat is void for lack of jurisdiction, there is no specified time limitation and no issue of discretionarises; a judgment or order granted in the absence of jurisdiction is a nullity that should be setaside unconditionally. Whatever the merit to this argument, such motion fails nonethelessbecause appellant has waived any objection to the court's jurisdiction over him by makingpayments on the deficiency judgment under the wage garnishment order for over a year beforebringing this motion to vacate (see Lomando v Duncan, 257 AD2d 649 [1999]).Concur—Andrias, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.