Citibank Eastern, N. A. v. Minbiole

• Decision Date: 30 December 1975
• Citation: Citibank Eastern, N. A. v. Minbiole, 50 A.D.2d 1052, 377 N.Y.S.2d 727 (N.Y. App. Div. 1975)
• Parties: , 18 UCC Rep.Serv. 1008 CITIBANK EASTERN, N.A., Respondent, v. David P. MINBIOLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 727

377 N.Y.S.2d 727

50 A.D.2d 1052, 18 UCC Rep.Serv. 1008

CITIBANK EASTERN, N.A., Respondent, v. David P. MINBIOLE, Appellant.

Supreme Court, Appellate Division, Third Department.

Dec. 30, 1975.

Kenneth H. Newbould, Albany, for appellant.

Harvey & Harvey, Albany (Jack D. Harvey, Albany, of counsel), for respondent.

Before SWEENEY, J.P., and KANE, KOREMAN, MAIN and LARKIN, JJ.

MEMORANDUM DECISION.

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 co-makers. Defendant Minbiole also signed a co-maker's statement. No payments were made on the note and an action was commenced against the corporation and the three co-makers. 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 pro tunc severing the action in order to correct the omission of June 14, 1974. The defendant Minbiole was given notice of this order on April 4, 1975.

This appeal raises the following issues: (1) Did the Clerk of the Court have the authority to enter an ex parte order Nunc pro tunc severing the cause of action against defendant Minbiole from the prior default judgment without application to the court? (2) Did the defendant raise issues of fact sufficient to defeat an application for summary judgment? Special Term answered the first question in the affirmative and the second in the negative in granting plaintiff's motion. Prior to the enactment of the CPLR if a judgment were entered without a prior order of severance, no further action could be maintained as the cause of action itself merged with the judgment (Industrial Bank of Schenectady v. Jack, 6 A.D.2d 463, 179 N.Y.S.2d (Industrial Bank of Schenectady v. Jack, (subd. (a)) provides, however, that '(u)pon entering a judgment against less than all defendants, the clerk Shall also enter an order severing the action as to them' (Emphasis supplied) The question presented is whether the omission of the clerk in failing to sever the action against a non-defaulting defendant may be rectified by an ex parte Nunc pro tunc order entered by the clerk. In a case directly in point the court stated: 'Since this is a defect which could be corrected by the more complex method of vacating the judgment, it does not seem to this Court that any prejudice results to the defendant by permitting the late entry of...