| Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente |
| 2011 NY Slip Op 05797 [86 AD3d 532] |
| July 5, 2011 |
| Appellate Division, Second Department |
| Financial Services Vehicle Trust, Respondent, v LawOffices of Dustin J. Dente et al., Defendants, and Katerina Arvanitakis,Appellant. |
—[*1] Deily, Mooney & Glastetter, LLP, Albany, N.Y. (Alexander Powhida of counsel), forrespondent.
In an action for replevin and to recover damages for breach of contract, the defendantKaterina Arvanitakis appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr.,J.), entered July 19, 2010, which granted the plaintiff's motion to vacate both an order of thesame court (Spinola, J.), dated February 24, 2010, granting the unopposed motion of thedefendant Katerina Arvanitakis for leave to enter a judgment on her counterclaim against theplaintiff upon its default in replying to the counterclaim, and a judgment of the same courtentered March 1, 2010, in her favor and against the plaintiff in the principal sum of $1 million.
Ordered that the order is affirmed, with costs.
The defendant Katerina Arvanitakis (hereinafter the appellant) failed to give the plaintifftimely notice of her motion for leave to enter a judgment on her counterclaim against the plaintiffupon its purported default in replying to the counterclaim (see Bianco v LiGreci, 298AD2d 482 [2002]). The plaintiff did not receive at least 13 days' notice, the minimum requiredfor motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). Absence of properservice of a motion is a sufficient and complete excuse for a default on a motion, and deprivesthe court of jurisdiction to entertain the motion (see CPLR 5015 [a] [4]; Zaidi v New York Bldg. Contrs., Ltd.,61 AD3d 747, 748 [2009]; Daulat vHelms Bros., Inc., 32 AD3d 410, 411 [2006]; Bianco v LiGreci, 298 AD2d 482[2002]; Welch v State of New York, 261 AD2d 537, 538 [1999]). Since the SupremeCourt was deprived of jurisdiction to entertain the motion, the resulting order dated February 24,2010, and the judgment entered upon that order were nullities (see Bonik v Tarrabocchia, 78 AD3d630, 632 [2010]; Bauerlein vSalvation Army, 74 AD3d 851, 857 [2010]; Welch v State of New York, 261AD2d at 538; Golden v Golden, 128 AD2d 672 [1987]). Accordingly, the plaintiff'smotion to vacate both the order dated February 24, 2010, and the judgment was properly granted.Skelos, J.P., Dickerson, Hall, Austin and Miller, JJ., concur.