Fried v. Carlucci & Legum
| Decision Date | 20 October 2003 |
| Citation | 309 A.D.2d 829,766 N.Y.S.2d 83 |
| Court | New York Supreme Court — Appellate Division |
| Parties | DOREEN FRIED et al., Respondents,<BR>v.<BR>CARLUCCI & LEGUM, Defendant and Third-Party Plaintiff-Appellant.<BR>CASCIONE, CHECHANOVER & PURCIGLIOTTI, P.C., et al., Third-Party Defendants-Respondents. |
Ordered that one bill of costs is awarded to the third-party defendants-respondents.
On June 30, 1999, the Supreme Court, Queens County (Thomas, J.), granted the motion of the defendant third-party plaintiff, Carlucci & Legum (hereinafter C & L), for leave to enter a judgment against the third-party defendants, Cascione, Chechanover & Purcigliotti, P.C. and Cascione, Purcigliotti & Galluzzi, P.C. (hereinafter CP & G), unless CP & G served an answer within 20 days of the filing of the order. That order was never served. Based upon that order, C & L obtained a clerk's judgment in its favor and against CP & G on the third-party complaint. "Where the rights of a party are or may be affected by an order, the successful moving party, in order to give validity to the order, is required to serve it on the adverse party" (McCormick v Mars Assoc., 25 AD2d 433 [1966]; see also CPLR 2220; Matter of Raes Pharmacy v Perales, 181 AD2d 58 [1992]; Lyons v Butler, 134 AD2d 576 [1987]). The conditional order dated June 30, 1999, was never served. Consequently, the order was invalid and, therefore, the default judgment based thereon was also invalid. Accordingly, the Supreme Court was correct in vacating the default judgment.
However, the Supreme Court erred by, in effect, refusing to decide C & L's motion to vacate its default in appearing at the inquest on damages in the main action. There was no basis to delay the determination of C & L's motion to vacate its default in appearing at the inquest.
To continue reading
Request your trial
-
Charalabidis v. Elnagar
...until its filing has been accomplished (see Skolnik v. Metro–North Commuter R.R., 13 A.D.3d 350, 786 N.Y.S.2d 100 ; Fried v. Carlucci & Legum, 309 A.D.2d 829, 766 N.Y.S.2d 83 ; Matter of Raes Pharm. v. Perales, 181 A.D.2d 58, 63–64, 586 N.Y.S.2d 579 ; Petrie v. Petrie, 144 A.D.2d 549, 535 N......
-
Schilt v. Matherson
...with notice of entry; thus, the plaintiffs were not validly served with the amended counterclaim ( see generally Fried v. Carlucci & Legum, 309 A.D.2d 829, 830, 766 N.Y.S.2d 83;Lyons v. Butler, 134 A.D.2d 576, 577, 521 N.Y.S.2d 477), and their obligation to serve a responsive pleading never......
-
Wolf Props. Assocs., L.P. v. Castle Restoration, LLC
...moving party, in order to give validity to the order, is required to serve it on the adverse party’ " ( Fried v. Carlucci & Legum, 309 A.D.2d 829, 830, 766 N.Y.S.2d 83, quoting McCormick v. Mars Assoc., 25 A.D.2d 433, 433, 265 N.Y.S.2d 1004 ; see CPLR 2220 ; Wells Fargo Bank, N.A. v. Friers......
-
Hernandez v. Mueller
...moving party, in order to give validityto the order, is required to serve it on the adverse party." ( Fried v. Carlucci & Legum, 309 A.D.2d 829, 830, 766 N.Y.S.2d 83 [2d Dept.2003] [ quoting McCormick v. Mars Assoc., 25 A.D.2d 433, 433, 265 N.Y.S.2d 1004 (2d Dept.1966) ] ). "[I]t is axiomat......