| Valiotis v Psaroudis |
| 2010 NY Slip Op 00135 [69 AD3d 610] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Evanthia Valiotis, Respondent, v Antonios Psaroudis etal., Defendants, and Constantino Psaroudis, Appellant. |
—[*1] Ira S. Newman, Great Neck, N.Y., for respondent.
In an action, inter alia, to recover damages for fraudulent misrepresentation and breach ofcontract, the defendant Constantino Psaroudis appeals from so much of an order of the SupremeCourt, Queens County (Rosengarten, J.), dated May 11, 2009, as denied that branch of thedefendants' motion which was to vacate so much of an order of the same court enteredNovember 8, 2008, as directed the entry of judgment against him upon his default in appearingor answering the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, that branch of the defendants' motion which was to vacate so much of the orderentered November 8, 2008, as directed the entry of judgment against the defendant ConstantinoPsaroudis is granted, without prejudice to the plaintiff filing, if she be so advised, a new motionfor leave to enter a default judgment outside the scope of the bankruptcy stay.
The appellant's deadline for timely answering the plaintiff's complaint was March 31, 2008.Without answering, the appellant filed a bankruptcy petition on August 13, 2008, which had theeffect of staying the instant action (see 11 USC § 362 [a] [1]). While the stay waspending, the plaintiff moved for, and obtained, an order entered November 8, 2008, directing theentry of a judgment on default. The appellant's bankruptcy proceeding was dismissed by orderdated December 10, 2008.
The Supreme Court erred in denying that branch of the defendants' motion which was tovacate so much of the order entered November 8, 2008, as directed the entry of judgment againstthe appellant. The order, insofar as it pertained to the appellant, issued when a stay was in effectduring the appellant's bankruptcy proceeding, was not merely voidable, but void (seeRexnord Holdings, Inc. v Bidermann, 21 F3d 522 [1994]; In re Best Payphones, Inc.,279 BR 92, 97-98 [SD NY 2002]; Carr v McGriff, 8 AD3d 420, 423 [2004]). Since the order insofaras it pertained to the appellant was void, the appellant did not have to establish an excusabledefault or a meritorious defense for its vacatur. In the absence of a further motion by the plaintifffor a default judgment outside the scope of the bankruptcy stay, the Supreme Court's denial ofthat branch of the defendants' motion which was to vacate so much of the order as directed the[*2]entry of judgment against the appellant amounted to, ineffect, an improper ratification of that order.
The plaintiff's remaining contentions either are without merit or have been renderedacademic. Dillon, J.P., Miller, Eng, Hall and Sgroi, JJ., concur.