| Falvo v Cerra |
| 2015 NY Slip Op 03126 [127 AD3d 919] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Ana Falvo, as Executrix of Romolo Guiseppe Falvo,Deceased, Respondent, v Rossella Falvo Cerra,Appellant. |
Sacco & Fillas, LLP, Astoria, N.Y. (Luigi Brandimarte of counsel), forappellant.
Pliskin, Rubano, Baum & Vitulli, Flushing, N.Y. (Joseph D. Vitulli of counsel),for respondent.
In an action, inter alia, to impose a constructive trust on certain real property, thedefendant appeals from an order of the Supreme Court, Queens County (Lane, J.), datedJuly 25, 2013, which (a) denied her motion pursuant to CPLR 5015 (a) to vacate ajudgment of the same court dated August 3, 2012 (Shulman, J.), entered upon her failureto appear or answer the complaint, inter alia, directing the imposition of a constructivetrust upon the subject property, and (b) sua sponte directed the assessment of costs, fees,and sanctions against her pursuant to 22 NYCRR 130-1.1 (a).
Ordered that on the Court's own motion, the notice of appeal from so much of theorder dated July 25, 2013, as, sua sponte, directed the assessment of costs, fees, andsanctions against the plaintiff pursuant to 22 NYCRR 130-1.1 (a) is deemed anapplication for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 5015 (a) to vacate the judgment dated August 3, 2012, is granted, andthe matter is remitted to the Supreme Court, Queens County, for furtherproceedings.
The defendant established that the Supreme Court did not acquire personaljurisdiction over her. Therefore, "all subsequent proceedings [were] thereby renderednull and void" (Emigrant Mtge.Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013], quoting Krisilas v Mount Sinai Hosp.,63 AD3d 887, 889 [2009]), and the default judgment entered against her was "anullity" (Prudence v Wright,94 AD3d 1073, 1074 [2012]; Segway of N.Y., Inc. v Udit Group, Inc., 120 AD3d 789,792 [2014]; see Krisilas vMount Sinai Hosp., 63 AD3d 887, 889 [2009]). Accordingly, the defendantdemonstrated her entitlement to vacatur of the August 3, 2012, default judgment basedon lack of jurisdiction (see CPLR 5015 [a] [4]; Segway of N.Y., Inc. v UditGroup, Inc., 120 AD3d at 791-792).
Where a defendant seeking to vacate a default judgment raises both a jurisdictionalobjection pursuant to CPLR 5015 (a) (4) and alternatively seeks a discretionary vacaturpursuant to CPLR 5015 (a) (1), the court is required to resolve the jurisdictional questionbefore determining whether it is appropriate to grant a discretionary vacatur of thedefault under CPLR 5015 (a) (1) (see Canelas v Flores, 112 AD3d 871 [2013]; EmigrantMtge. Co., Inc. v Westervelt, 105 AD3d at 897). In light of our determination of thejurisdictional issue, we need not reach the defendant's contention regarding adiscretionary vacatur pursuant to CPLR 5015 (a) (1), nor do we exercise our discretion toaddress the defendant's contention that the default judgment should be vacated based onevidence [*2]of fraud or misrepresentation (seeCPLR 5015 [a] [3]).
The record shows that the defendant did not engage in frivolous or otherwisesanctionable conduct (see 22 NYCRR 130-1.1 [c]). Accordingly, the SupremeCourt erred in, inter alia, sua sponte sanctioning her. Mastro, J.P., Rivera, Dickerson andMaltese, JJ., concur.
Motion by the respondent to dismiss an appeal from an order of the Supreme Court,Queens County, dated July 25, 2013, on the grounds that this Court has no jurisdiction tohear the appeal and that no appeal lies from an order denying a motion for leave toreargue. By decision and order on motion of this Court dated December 30, 2013, themotion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is,
Ordered that the motion is denied. Mastro, J.P., Rivera, Dickerson and Maltese, JJ.,concur.