50 A.D.2d 1052 | N.Y. App. Div. | 1975
— Appeal (1) from an order of the Supreme Court at Special Term, entered May 30, 1975 in Albany County, which granted a motion by plaintiff for summary judgment against defendant David P. Minbiole in the sum of $12,889.52 and (2) from the judgment entered thereon. The facts in this case are not in dispute. On July 25, 1973 plaintiff made a loan to Seaboard Express, Inc., in the sum of $32,948.16. The appellant, David P. Minbiole, an officer of Seaboard, and two others signed the note as comakers. Defendant Minbiole also signed a comaker’s statement. No payments were made on the note and an action was commenced against the corporation and the three comakers. Upon the default of all of the defendants except Minbiole, plaintiff applied to the clerk of the court for a default judgment pursuant to CPLR 3215 (subd [a]). On June 14, 1974 plaintiff entered a default judgment against the defaulting defendants. When the clerk entered the judgment, however, he failed to sever the action as to defendant Minbiole as mandated by CPLR 3215 (subd [a]). This omission gave rise to the present controversy. On January 10, 1975 plaintiff served defendant with a notice of motion for summary judgment. Defendant Minbiole raised the absolute defense of merger and cross-moved for summary judgment dismissing the complaint.' The original return date of the motion was January 23, 1975, but the eventual adjourned date was during May. In the meantime, on February 19, 1975, plaintiff had an ex parte order entered by the clerk of the court nunc