| Congregation Chaim Barucha v Friedman |
| 2009 NY Slip Op 04182 [62 AD3d 933] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Congregation Chaim Barucha, Respondent, v AronFriedman, Appellant. |
—[*1] Solomon Rosengarten, Brooklyn, N.Y., for respondent.
In an action to recover for damage to property, the defendant appeals from an order of theSupreme Court, Rockland County (Garvey, J.), dated October 29, 2008, which denied his motionto vacate a clerk's judgment of the same court entered May 19, 2008, upon his default inappearing 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 thatbranch of the defendant's motion which was to vacate the clerk's judgment and substitutingtherefor 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 resultof the loss of certain allegedly "rare and valuable" books it loaned to the defendant, whodefaulted in appearing and answering the complaint. The defendant failed to establish areasonable excuse for the default or a meritorious defense to the action (see CPLR 5015[a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).
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 AD2d 942, 943[1999]; White v Weiler, 255 AD2d 952, 953 [1998]), the clerk lacked the authority toenter the judgment at issue (see CPLR 3215 [a]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 673 [2008];Ayres Mem. Animal Shelter, Inc. vMontgomery County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904,904-905 [2005]; Jannon v Van Buskirk, 227 AD2d 844 [1996]; Maxwell v First PortJefferson Corp., 31 AD2d 813 [1969]). Accordingly, the Supreme Court should have grantedthat branch of the defendant's motion which was to vacate the clerk's judgment (see VerdeElec. Corp. v Federal Ins. Co., 50 AD3d at 673; Maxwell v First Port JeffersonCorp., 31 AD2d at 813; cf. Gibbs v Hoot Owl Sportsman's Club, 257 AD2d 942,943-944 [1999]; Jannon v Van Buskirk, 227 AD2d at 844-845). Rivera, J.P., Covello,Dickerson and Chambers, JJ., concur.