White v. Weiler

Nov 13, 1998
Versions:255 A.D.2d 952
680 N.Y.S.2d 784
1998 N.Y. App. Div. LEXIS 12203

—Order unanimously reversed in the interest of justice without costs, motion granted and judgment vacated. Memorandum: Defendants argue that the default judgment should not have been accepted by the Oneida County Clerk for filing because three causes of action do not fall within the statu*953tory definition of claims for a sum certain (see, CPLR 3215 [a]). Although defendants failed to make that argument to Supreme Court, thereby not preserving an issue of law for our review, we review the argument in the interest of justice and reverse.

Although the summons with notice contains a cause of action for breach of contract, which can be characterized as a claim for a sum certain, it also contains causes of action for conversion, loss of use of property and mental anguish. Because those causes of action are not claims for a sum certain, “the Clerk is without power to act” (Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d 423, 424). The judgment entered “was a nullity and the application to vacate the judgment and open the default should have been granted unconditionally” (Geer, Du Bois & Co. v Scott & Sons Co., supra, at 424; see also, Tutera v Nagel, 160 AD2d 1058). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Vacate Judgment.) Present — Green, J. P., Wisner, Pigott, Jr., Balio and Fallon, JJ.