Mayers v. Cadman Towers, Inc.

• Decision Date: 02 August 1982
• Citation: 89 A.D.2d 844,453 N.Y.S.2d 25
• Parties: Daniel MAYERS, Respondent-Appellant, v. CADMAN TOWERS, INC., Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 25

453 N.Y.S.2d 25

89 A.D.2d 844

Daniel MAYERS, Respondent-Appellant, v. CADMAN TOWERS, INC., Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 2, 1982.

Griffin, Scully & Savona, New York City (Anthony J. McNulty and William F. McNulty, New York City, of counsel), for appellant-respondent.

Kelner & Kelner, New York City (Joseph Kelner, New York City, of counsel; Martin Rubenstein, New York City, on the brief), for respondent-appellant.

Before DAMIANI, J. P., and LAZER, GULOTTA and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, (1) defendant appeals from so much of an order of the Supreme Court, Kings County, dated July 24, 1981, as conditioned vacatur of its default in answering upon its waiver of the defense of the Statute of Limitations, and (2) plaintiff cross-appeals from so much of the same order as granted vacatur. The appeal and cross appeal bring up for review so much of a further order of the same court, dated December 11, 1981, as, upon reargument, adhered to the original determination.

Appeal and cross appeal from the order dated July 24, 1981 dismissed as academic, without costs or disbursements. That order was superseded by the order granting reargument.

Order dated December 11, 1981 reversed insofar as reviewed, without costs or disbursements, order dated July 24, 1981 vacated, and matter remitted to Special Term for further proceedings in accordance herewith.

Defendant moved by order to show cause returnable July 21, 1981, several months after expiration of the Statute of Limitations, for vacatur of its default in answering plaintiff's complaint, purportedly served November 19, 1980. Submitting an affidavit of merits but no draft of an answer, defendant sought leave to interpose a late answer on the ground that it had never been served and had no actual notice of the lawsuit until receipt in June, 1981 of the plaintiff's motion for leave to enter a default judgment.

Defendant correctly argues that, had service not been duly effected, Special Term would have no jurisdiction over it and therefore all further proceedings, including the motion for a default judgment, would be absolute nullities (see McMullen v. Arnone, 79 A.D.2d 496, 499, 437 N.Y.S.2d 373). On the other hand, had service been properly made, defendant's excuse (lack of actual knowledge of the lawsuit) would have to be weighed with the apparent merit of the case against the...