| Crown Waterproofing, Inc. v Tadco Constr. Corp. |
| 2012 NY Slip Op 07083 [99 AD3d 964] |
| October 24, 2012 |
| Appellate Division, Second Department |
| Crown Waterproofing, Inc., Respondent, v TadcoConstruction Corp., Appellant. |
—[*1] Lyons McGovern, LLP, White Plains, N.Y. (Desmond C. B. Lyons and Diane B. Cavanaughof counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Westchester County(Lefkowitz, J.), entered August 25, 2010, as denied that branch of its motion which was to vacatean order of the same court entered May 27, 2010, granting those branches of the plaintiff'sunopposed motion which were pursuant to CPLR 3126 to strike its answer and for leave to entera judgment in favor of the plaintiff and against it in the principal sum of $22,365.22.
Ordered that the order entered August 25, 2010, is reversed insofar as appealed from, on thelaw, with costs, that branch of the defendant's motion which was to vacate the order entered May27, 2010, is granted, the order entered May 27, 2010, and a judgment of the same court enteredJuly 16, 2010, upon the order entered May 27, 2010, are vacated, and those branches of theplaintiff's motion which were pursuant to CPLR 3126 to strike the defendant's answer and forleave to enter a judgment in favor of the plaintiff and against the defendant in the principal sumof $22,365.22 are denied.
By order to show cause dated May 3, 2010, the plaintiff moved, inter alia, pursuant to CPLR3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiffand against the defendant in the principal sum of $22,365.22. The defendant did not oppose themotion. However, although the order to show cause directed the plaintiff to serve the order toshow cause and supporting papers upon the defendant's attorney on or before 5:00 p.m. on May3, 2010, the plaintiff did not properly serve the defendant's attorney within the prescribed time(see CPLR 2214 [d]; Matter ofFeldman v Feldman, 54 AD3d 372 [2008]; Matter of Kapsis v Kelleher, 37 AD3d 381 [2007]; EuropeanAm. Bank v Legum, 248 AD2d 206, 207 [1998]). The absence of proper service of an orderto show cause is a sufficient and complete excuse for a default on the motion, and deprives thecourt of jurisdiction to entertain the motion (see Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748[2009]; Daulat v Helms Bros., Inc.,32 AD3d 410, 411 [2006]; Bianco v LiGreci, 298 AD2d 482 [2002]; Welch vState of New York, 261 AD2d 537, 538 [1999]). Accordingly, the defendant's motion tovacate the order granting those branches of the plaintiff's motion which were pursuant to CPLR3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiffand against the defendant in the [*2]principal sum of $22,365.22should have been granted (see CPLR 5015 [a] [4]; Bianco v LiGreci, 298 AD2d482 [2002]; European Am. Bank v Legum, 248 AD2d at 207). Since the court wasdeprived of jurisdiction to entertain the plaintiff's motion, the order entered May 27, 2010, andthe judgment entered July 16, 2010, upon that order, were nullities and must be vacated (see Financial Servs. Veh. Trust v Law Offs.of Dustin J. Dente, 86 AD3d 532, 533 [2011]; Bonik v Tarrabocchia, 78 AD3d 630, 632 [2010]; Bauerlein v Salvation Army, 74 AD3d851, 857 [2010]; Welch v State of New York, 261 AD2d at 538).
In light of the foregoing, we need not reach the defendant's remaining contentions. Dillon,J.P., Hall, Roman and Cohen, JJ., concur.