Financial Services Vehicle Trust v. Law Offices of Dente

Jul 5, 2011
Versions:86 A.D.3d 532
926 N.Y.S.2d 326
926 N.Y.2d 326

The defendant Katerina Arvanitakis (hereinafter the appellant) failed to give the plaintiff timely notice of her motion for leave to enter a judgment on her counterclaim against the plaintiff upon its purported default in replying to the counterclaim (see Bianco v LiGreci, 298 AD2d 482 [2002]). The plaintiff did not receive at least 13 days’ notice, the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the 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 v Helms 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 Supreme Court 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 AD3d 630, 632 [2010]; Bauerlein v Salvation Army, 74 AD3d 851, 857 [2010]; Welch v State of New York, 261 AD2d at 538; Golden v Golden, 128 AD2d 672 [1987]). Accordingly, the plaintiff‘s motion 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.