Jann v. Cassidy

• Decision Date: 01 October 1999
• Citation: 696 N.Y.S.2d 337
• Parties: Margaret JANN, Plaintiff-Respondent, v. James CASSIDY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 337

696 N.Y.S.2d 337

Margaret JANN, Plaintiff-Respondent, v. James CASSIDY, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 1, 1999.

Richard A. Harris, Tonawanda, for defendant-appellant.

Timothy E. Ingersoll, Rochester, for plaintiff-respondent.

PRESENT: DENMAN, P.J., GREEN, HAYES, PIGOTT, JR., and SCUDDER, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking enforcement of those provisions of a divorce judgment granted in Paris, France, allegedly dividing the marital debts equally between the parties. Supreme Court ordered that defendant shall be responsible for one half of the marital debts owed to a list of creditors identified in the complaint.

The order recites that it is "upon motion of the Plaintiff", but it is not clear what motion the court granted. Plaintiff moved for a default judgment based upon defendant's failure to answer or appear in a timely manner. We note that, "[w]here, as here, a party appears and contests an application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an order or judgment entered upon default, is inapplicable, and the judgment predicated upon the party's default is therefore appealable" (Spatz v. Bajramoski, 214 A.D.2d 436, 624 N.Y.S.2d 606, citing Marrocco v. Marrocco, 90 A.D.2d 989, 456 N.Y.S.2d 906). Plaintiff is not entitled to a default judgment because the record contains no indication that proof of service was filed (see, CPLR 3215[f]; McKeown v. County of Nassau, 102 A.D.2d 882, 477 N.Y.S.2d 55), and defendant would be entitled to a hearing on his share of the debts alleged in the complaint (see, Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106; Gaylord Bros. v. RND Co., 134 A.D.2d 848, 849, 523 N.Y.S.2d 4). In any event, it does not appear that the court granted a default judgment. The order makes no mention of defendant's alleged default and recites that it is "[u]pon all of the prior proceedings heretofore had and filed herein * * * and the Defendant having appeared pro se ". On appeal, moreover, neither party addressed the order as if a default judgment had been granted. Thus, it appears that the court granted relief to plaintiff on a basis other than defendant's default (see, Hurd v. Hurd, 89 A.D.2d 655, 656, 453 N.Y.S.2d 263).

The only other motion of plaintiff appearing in the record is plaintiff's motion by order to show cause, which the court may have treated as a summary judgment motion (see, Golan v. Wise Servs., 69 N.Y.2d 343, 345, 514 N.Y.S.2d 682, 507 N.E.2d 275; Matter of Rine v. Higgins, 244 A.D.2d 963, 964, 665 N.Y.S.2d 165). The order to show cause was served, however, before issue had been joined (see, CPLR 3212[a]; Matter of Rine v. Higgins, supra, at 964, 665 N.Y.S.2d 165). Indeed, the order to show cause preceded service of the complaint, at which time a motion for summary judgment would have been premature (see, Woodworth v....