Freccia v. Carullo

• Decision Date: 25 April 1983
• Parties: Emily FRECCIA, Respondent, v. Catherine CARULLO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 38

462 N.Y.S.2d 38

93 A.D.2d 281

Emily FRECCIA, Respondent, v. Catherine CARULLO, Appellant.

Supreme Court, Appellate Division Second Department.

April 25, 1983.

Henry Grant, New Rochelle, for appellant.

Donald S. Mazin, Larchmont, for respondent.

Before TITONE, J.P., and THOMPSON, O'CONNOR and BRACKEN, JJ.

TITONE, Justice Presiding.

On this appeal the defendant argues that a default judgment obtained by plaintiff against her in the County Court, was void for lack of subject matter jurisdiction, and that neither laches nor the absence of a meritorious defense is a bar to its vacatur.

THE FACTS

On March 1, 1978, Catherine Carullo, the defendant in this matter, was personally served with a summons with notice, dated February 23, 1978 (CPLR 305, subd. [b] ). According to the notice, the object of the action was "to collect monies advanced by plaintiff on behalf of defendant". Judgment was sought in the sum of $854 with interest from December 1, 1977. In an affidavit by plaintiff's attorney, dated April 12, 1978, as to the facts constituting the claim in order to have a default judgment entered and to state the amount due, the attorney made the following assertion:

"Malcolm Wein, being duly sworn, deposes and says: that the deponent is the plaintiff (s) [sic ] in the within action; this action was commenced by PERSONAL AND MAILING service of the summons upon defendant and is an action for the recovery of amount due of $854.00 [to] plaintiff by the defendant for monies advanced by the plaintiff on behalf of the defendant for insurance premium at the request of the defendant. The grounds of deponent's belief as to all matters not stated on deponent's knowledge are as follows: Information filed with your deponent by the plaintiff (records). The basis of the venue is the residence of defendant."

On April 13, 1978, a default judgment was entered in favor of plaintiff and against defendant by the clerk of the court.

MOTION TO VACATE DEFAULT JUDGMENT

By motion submitted May 28, 1981, some 37 months after entry of the default judgment, defendant moved to vacate that judgment on the ground that since only a summons with notice was served upon her, the default judgment was jurisdictionally defective because plaintiff's attorney submitted an affidavit of claim, instead of plaintiff as required by subdivision (e) of CPLR 3215.

DETERMINATION OF SPECIAL TERM

On June 2, 1981, Special Term denied defendant's motion to vacate the default judgment based on the fact that defendant had actual knowledge of the default judgment for more than three years and elected to do nothing. Special Term also concluded that not only was defendant guilty of laches, but it did not appear from the papers submitted on the motion that she had a meritorious defense to the action.

THE LAW

The following language contained in CPLR 3215 and 5015 is relevant in this case:

" § 3215. Default Judgment.

"(a) Default and Entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain * * * application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305, plus costs and interest * * * Where the case is not one in which the clerk can * * *

enter judgment, the plaintiff shall apply to the court for judgment.

* * *

"(e) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316, and proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Where a verified complaint has been served it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or his attorney" (emphasis supplied).

" § 5015. Relief from judgment or order.

"(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

"1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or

* * *

* * *

"4. lack of jurisdiction to render the judgment or order" (emphasis supplied).

DETERMINATION ON APPEAL

On appeal defendant correctly notes that on any application for a default judgment, a plaintiff who, inter alia, files proof of service of a summons and complaint, or a summons with notice (see CPLR 305, subd. [b] ), must personally also file or submit an affidavit of the facts constituting the claim, the default and the amount due. Defendant then argues that since in this case the affidavit supporting the application to enter a default judgment was not made by plaintiff but rather by her attorney, such defect was fatal to the validity of the default judgment, and hence it was void for want of jurisdiction. Defendant also asserts that since the default judgment was void, the fact that she had knowledge of its existence for approximately three years before electing to contest it, does not render her guilty of laches since an attack upon a void judgment may be made at any time, and may even be raised for the first time on an appeal.

It must be observed that there is a strong line of Appellate Division decisions supporting defendant's position that the subject default judgment is void for lack of subject matter jurisdiction. For example, in Georgia Pacific Corp. v. Bailey, 77 A.D.2d 682, 429 N.Y.S.2d 787, two actions were brought against defendants to recover for goods sold and delivered. Defendants did not appear and default judgments were taken. Special Term denied defendants' motions to vacate the default judgments. On appeal defendants contended that service was defective, and the judgments were void because of plaintiffs' failure to file adequate papers pursuant to CPLR 3215 (subd. [e] ). The Third Department reversed and vacated the default judgments with the following succinct statement:

"The record reveals that the affidavits of the facts constituting the claims were made by plaintiffs' attorney and not by a party, as required by the statute. Under these circumstances, each of the judgments is a nullity and must be vacated (Union Nat. Bank v. Davis, 67 A.D.2d 1034 ). In light of this determination, it is unnecessary to consider any other issue. The orders must be reversed and the default judgments vacated" (emphasis supplied).

In a similar factual situation, the Third Department, in Union Nat. Bank v. Davis, 67 A.D.2d 1034, 413 N.Y.S.2d 489, stated that:

"where a default judgment is entered without compliance with the requirements therefor, that judgment is a nullity and must be vacated (Red Creek Nat. Bank v. Blue Star Ranch, 58 AD2d 983, 984 ). CPLR 3215 (subd [e] ) provides that the clerk is authorized to enter a default judgment against a defendant only when the proof of service is accompanied by proof by affidavitmade by the party of the facts constituting the claim, the default and the amount due. Here, the affidavit was made by plaintiff's attorney rather than one of plaintiff's officers and is, therefore, not in compliance with the requirements of CPLR 3215 (subd [e] ). Thus, we refrain from considering the issues of excusable default and the presence of a meritorious defense, the grounds relied upon by Special Term in granting defendant's motion" (see Woodstock Lake Assoc. v. Pleasure Crest Corp., 65 A.D.2d 867, 410 N.Y.S.2d 409; Red Creek Nat. Bank v. Blue Star Ranch, 58 A.D.2d 983, 984, 396 N.Y.S.2d 936).

Significant support for defendant's position is also found in a case decided by this court in 1955, Cooper Lbr. Co. v. Masone, 286 App.Div. 879, 142 N.Y.S.2d 562. In Cooper, plaintiff commenced an action by substituted service of process on December 5, 1941, pursuant to an order granted December 3, 1941, against defendant Masone. Proof of service on Masone was filed on December 6, 1941. None of the other named defendants was served, and none of the defendants interposed an answer. Upon application to the clerk of the court, judgment by default was entered against all defendants on December 27, 1941. Because of the fact that 30 days had not expired since the filing of the proof of service, the entry of the default judgment was premature under section 231 of the former Civil Practice Act. As to such defect of the entry of a premature default judgment, this court held that in view of the fact that proof was adduced that at least one of the codefendants knew of the existence of the judgment "many years ago," Special Term, in the exercise of its discretion, could properly refuse relief because of laches.

However, in reversing the order denying the defendant Masone's application to, inter alia, open the default, this court further noted that for the first time on appeal, it was urged that when the default judgment was entered in 1941 by the clerk, such a judgment founded upon nonpersonal service could only be granted upon application to the court or a judge thereof (former Civ.Prac. Act, § 493). This court then determined (pp. 879-880, 142 N.Y.S.2d 562):

"Since the clerk acted without jurisdiction, the judgment entered herein is void * * * Want of jurisdiction may be asserted at any time * * * Accordingly, neither defendants' laches nor their failure to raise the jurisdictional question below is a...