| Bonik v Tarrabocchia |
| 2010 NY Slip Op 07878 [78 AD3d 630] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Rajata Bonik, Respondent, v Joseph Tarrabocchia,Appellant. |
—[*1] Jeanette M. Westphal, New York, N.Y., for respondent.
In an action for specific performance of a contract for the sale of real property, the defendantappeals from a judgment of the Supreme Court, Queens County (Schulman, J.), entered September 2,2009, which, upon an order dated September 23, 2008, denying his cross motion to vacate his defaultin appearing at a court-ordered conference on September 29, 2004, and upon an order entered April6, 2009, denying his motion for leave to renew and reargue his cross motion to vacate his default inappearing at a court-ordered conference on September 29, 2004, and his opposition to the plaintiff'srenewed motion for leave to enter judgment against him upon his default in complying with both ajudgment entered March 22, 2006, and an order entered July 20, 2007, is in favor of the plaintiff andagainst him directing him to transfer the subject real property to the plaintiff in consideration of the sumof $361,080.
Ordered that the judgment entered September 2, 2009, is reversed, on the law, with costs, theplaintiff's renewed motion for leave to enter judgment against the defendant upon the defendant's failureto comply with both the judgment entered March 22, 2006, and the order entered July 20, 2007, isdenied, the defendant's cross motion to vacate his default in appearing at a court-ordered conferenceon September 29, 2004, is granted, the judgment entered March 22, 2006, and the order entered July20, 2007, are vacated, those branches of the defendant's motion which were to renew and reargue hiscross motion to vacate his default in appearing at the conference and his opposition to the plaintiff'srenewed motion for leave to enter judgment against him upon his default in complying with both thejudgment entered March 22, 2006, and the order entered July 20, 2007, are denied as academic, andthe orders dated September 23, 2008, and entered April 6, 2009, respectively, are modifiedaccordingly.
In an order entered July 1, 2004, the Supreme Court, inter alia, granted that branch of the plaintiff'sunopposed motion which was to restore the action to the calendar, and thereupon scheduled aconference for September 29, 2004. The defendant failed to appear at either the conference or thesubsequent inquest held on October 25, 2004. On March 22, 2006, judgment was entered, amongother things, directing the specific performance of a contract between the parties for the sale of certainreal property. In an order entered July 20, 2007, the same court, inter alia, granted that branch of theplaintiff's unopposed motion which was to direct the defendant to comply with the judgment enteredMarch 22, 2006. When the defendant failed to comply with both that judgment and that order, theplaintiff made a renewed motion for leave to enter another default judgment against the defendant. Bynotice dated April 30, 2008, the defendant cross-moved to vacate his default in appearing at theconference scheduled for September 29, 2004. In an order dated [*2]September 23, 2008, the Supreme Court granted the plaintiff's renewedmotion for leave to enter a default judgment, and denied the defendant's cross motion to vacate hisdefault in appearing at the conference. By notice of motion dated November 13, 2008, the defendantmoved for leave to renew and reargue both his opposition to the plaintiff's renewed motion, as well ashis own cross motion. The Supreme Court denied leave to renew and reargue, and judgment wasentered in favor of the plaintiff. We reverse.
The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of theorder entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. Theassertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendantwas not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d904 [2010]). A written statement prepared by the plaintiff's attorney on August 4, 2004, wasneither sworn to before a notary public nor subscribed and affirmed to be true under the penalties ofperjury and, thus, did not constitute competent evidence of service (see CPLR 2106;Moore v Tappen, 242 AD2d 526 [1997]). Without notice of the conference, the defendant's"default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence(see CPLR 5015 [a] [4]; Pelaez vWestchester Med. Ctr., 15 AD3d 375, 376 [2005]; Tragni v Tragni, 21 AD3d 1084, 1085 [2005]; cf. Hwang v Tam, 72 AD3d 741, 742[2010]). In this situation, vacatur of the default is required as a matter of law and due process, and noshowing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr.,15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626 [1999]). Consequently, thesubsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were allnullities, and must be vacated. In addition, there was no competent proof that the plaintiff served thedefendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice ofentry, or a copy of the order entered July 20, 2007, with notice of entry.
Accordingly, the plaintiff's renewed motion for leave to enter a default judgment against thedefendant should have been denied and the defendant's cross motion to vacate his default in appearingat the conference of September 29, 2004, should have been granted. Skelos, J.P., Santucci, Angiolillo,Hall and Roman, JJ., concur.