Pine v. Town of Hoosick
| Decision Date | 17 February 1977 |
| Citation | 56 A.D.2d 692,391 N.Y.S.2d 738 |
| Parties | Chester W. PINE et al., Respondents, v. TOWN OF HOOSICK et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Robert P. Roche by Jed B. Wolkenbreit, Albany, of counsel to Hubert D. Miles, Albany, for appellants.
Gerald A. Harley, Hoosick Falls, for respondents.
Before KOREMAN, P.J., and GREENBLOTT, KANE, MAHONEY and HERLIHY, JJ.
Appeal from an order of Supreme Court at Special Term, entered March 22, 1976 in Albany County.
After defendants failed to answer the complaint in an action to recover damages for the allegedly unlawful taking of trees and shrubs, the plaintiffs entered a default judgment with the Clerk of Rensselaer County in the sum of $53,555 (CPLR 3215, subd. (a)). The defendants moved to vacate the judgment and for leave to appear, answer and defend against the plenary action (CPLR 5015). Plaintiffs cross-moved for summary judgment. Special Term vacated the default judgment, permitted defendants to appear, but not to answer, granted plaintiffs' motion for partial summary judgment as to liability and ordered an inquest as to damages. Without submitting an order to effectuate Special Term's decision, the municipal defendant moved for reargument on the ground that Special Term was without authority to grant plaintiffs' cross motion for summary judgment. Special Term then granted defendants' motion for reargument, granted defendants' motion to vacate the default judgment, denied their motion to open their default on grounds of excusable neglect and ordered that a default judgment be taken by plaintiffs before the court pursuant to subdivision (b) of section 3215 of the CPLR. This appeal ensued.
Clearly, the default judgment entered with the Clerk of Rensselaer County was jurisdictionally defective since plaintiffs' claim was neither for a sum certain nor for a sum which by computation could be made certain (CPLR 3215, subd. (a)). Special Term was correct in vacating the judgment (CPLR 5015, subd. (a), par. (4)). However, the order appealed from is inconsistent since it both grants the municipal defendants' motion to vacate the judgment and denies its motion to open its default. Since the default judgment was jurisdictionally defective (Malone v. Citarella, 7 A.D.2d 871, 182 N.Y.S.2d 200), it was a nullity. It was an improvident exercise of discretion for Special Term to then consider the supporting papers and determine that the municipal de...
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... ... to the question of whether the judgment should be vacated for a lack of jurisdiction (Pine v. Town of Hoosick, 56 A.D.2d 692, 391 N.Y.S.2d 738; Queensboro Leasing v. Resnick, 78 Misc.2d ... ...
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Mead v. First Trust & Deposit Co.
... ... v. Scott & Sons Co., 25 A.D.2d 423, 266 N.Y.S.2d 580) and void (Pine v. Town of Hoosick, 56 A.D.2d 692, 391 N.Y.S.2d 738; Geer, Du Bois & Co. v. Scott & Sons Co., ... ...
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Tutera v. Nagel
... ... improperly entered and Supreme Court properly determined that the judgment was a nullity (see, Pine v. Town of Hoosick, 56 A.D.2d 692, 693, 391 N.Y.S.2d 738; Geer, Du Bois & Co. v. Scott & Sons Co., ... ...
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Wickham v. Liberty Mut. Ins. Co.
... ... judgment entered against her is jurisdictionally defective and may be attacked at any time (Pine v. Town of Hoosick, 56 A.D.2d 692, 391 N.Y.S.2d 738; Malone v. Citarella, 7 A.D.2d 871, 182 ... ...
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A nullity or not? The status of a default judgment entered absent compliance with CPLR 3215(f).
...(App. Div. 3d Dep't 1999); Jannon v. Van Buskirk, 227 A.D.2d 844, 642 N.Y.S.2d 402 (App. Div. 3d Dep't 1996); Pine v. Town of Hoosick, 56 A.D.2d 692, 391 N.Y.S.2d 738 (App. Div. 3d Dep't 1977); see SIEGEL, NEW YORK PRACTICE, supra note 1, [section] 293, at 477 ("Anything that prevents mere ......