86 A.D.2d 561 | N.Y. App. Div. | 1982
Dissenting Opinion
dissent in a memorandum by Bloom, J., as follows: H. D. I. Diamonds, Inc. (HDI) is in the business of buying and selling jewelry. Frederick Modell, Inc. (Modell) is a manufacturer of jewelry. The two entered into an agreement under which HDI undertook to sell Modell’s line of jewelry. The agreement provided that HDI was to procure orders which it was to send to Modell for processing. Modell agreed to fill the orders accepted by HDI and upon payment to HDI by its customers it was to make payment to Modell. Critical to the problem before us is a provision that: “In the event that merchandise is returned, we [Modell] shall issue a credit to your customer on your behalf”. Hampton Designs, Inc. (Hampton) guaranteed payment and
Lead Opinion
Order, Supreme Court, New York County (Pécora, J.), entered June 24, 1981, which, inter alia, granted the motion of defendants H. D. I. Diamonds, Inc., and Hampton Designs, Inc., to vacate a default judgment entered on October 11, 1979 in the sum of $56,365.20 against said defendants, reversed, on the law, with costs and disbursements, and the motion denied. On October 11, 1979 a judgment was entered upon default in favor of plaintiff Modell against defendants H. D. I. and Hampton. One week later, on October 18,1979, the judgment was paid and a satisfaction thereafter filed. Eleven months later, on September 15,1980, said defendants moved, by cross motion in a subsequent action in which they appeared as plaintiffs, to vacate their default. Special Term granted the motion. This was error. A judgment which is paid and satisfied of record ceases to have any existence since a defendant, by paying the amount due, extinguishes the judgment and the obligation thereunder. (Kamp v Kamp, 59 NY 212; Morris Plan Ind. Bank of N. Y. v Kraemer, 243 App Div 632; McCredy v Thrush, 37 App Div 465.) Thus, Special Term was without jurisdiction to vacate the judgment. Moreover, defendants failed to demonstrate a valid excuse for the default. Indeed, it appears that the default was willful. Nor do they justify the 11-month delay from the payment and satisfaction of the judgment in moving to vacate. In such circumstances the default should not have been vacated. (Cohen v Levy, 50 AD2d 1039; Back v Stern, 23 AD2d 837.) Concur — Murphy, P. J., Birns and Sullivan, JJ.