Kaiser v. J & S Realty, Inc.
| Decision Date | 24 June 1993 |
| Citation | 600 N.Y.S.2d 642,194 A.D.2d 1034 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Robert J. KAISER et al., Respondents, v. J & S REALTY INC., Appellant. |
Maroney, Ponzini & Spencer (Marianne Stecich, of counsel), Tarrytown, for appellant. Baum & Shawn (Morton I. Baum, of counsel), Monticello, for respondents.
Appeal from an order of the Supreme Court (Williams, J.), entered April 21, 1992 in Sullivan County, which, inter alia, denied defendant's motion to vacate a default judgment entered against it. In June 1988, judgment was entered in favor of plaintiffs upon defendant's default in answering or appearing. Defendant's subsequent oral motion to vacate the default judgment upon the ground that it was never served with the summons and complaint was granted by Supreme Court. Upon appeal, we reversed because the record contained no evidence in support of the motion (173 A.D.2d 920). Defendant has now made a second motion for the same relief upon the same ground. Supreme Court denied the motion, reasoning that this court's denial of the initial motion was upon the merits and defendant failed to make the requisite showing for renewal thereof. Defendant appeals. There must be a reversal. In view of the fact that our denial of defendant's motion was based upon a mere procedural error, Supreme Court abused its discretion in denying renewal upon correction of the error (see, Lauer v. Rapp, 190 A.D.2d 778, 593 N.Y.S.2d 843; S & D Petroleum Co. v. Tamsett, 144 A.D.2d 849, 534 N.Y.S.2d 800; Walsh v. Smith, 50 A.D.2d 997, 377 N.Y.S.2d 232; cf., Zebrowski v. Pearl Kitchens, 172 A.D.2d 972, 568 N.Y.S.2d 242). On the present application, defendant came forward with a competent evidentiary showing that it was never served with the summons and complaint and, thus, that plaintiffs never obtained personal jurisdiction over it. Accordingly, Supreme Court should have granted the motion to vacate the default judgment. ORDERED that the order is reversed, on the law, with costs, motion to renew granted and, upon renewal, motion to vacate default judgment granted.
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...( see Wester v. Sussman, 304 A.D.2d 656, 757 N.Y.S.2d 500;Wilcox v. Winter, 282 A.D.2d 862, 722 N.Y.S.2d 836;Kaiser v. J & S Realty, 194 A.D.2d 1034, 600 N.Y.S.2d 642;Lauer v. Rapp, 190 A.D.2d 778, 779, 593 N.Y.S.2d 843). Upon renewal, the motion for summary judgment should have been denied......