Red Creek Nat. Bank v. Blue Star Ranch, Ltd.
| Decision Date | 12 July 1977 |
| Parties | RED CREEK NATIONAL BANK, Respondent, v. BLUE STAR RANCH, LTD., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Burger, Pogal & Nessler, David E. Gann, Rochester, for appellant.
Peter E. Corning, Auburn, for respondent.
Before MOULE, J. P., and SIMONS, DILLON and WITMER, JJ.
Plaintiff commenced this action on February 5, 1976 to recover.$55,061.15 allegedly due from defendant under certain promissory notes. Service of the summons and complaint was effected on a representative of the Secretary of State pursuant to Business Corporation Law, § 306, and on March 4, 1976 a default judgment was entered against defendant in the amount of $64,344.56 of which $8,782.27 represented attorney's fees.
Thereafter in June, 1976 defendant successfully moved to vacate the default, alleging that it never received actual notice of the pendency of the action or the entry of judgment until May, 1976. Defendant was permitted to serve an answer in which it denied the material allegations of the complaint and asserted 11 affirmative defenses and one counterclaim. Plaintiff subsequently moved for summary judgment and, following the grant of this motion, a modified judgment was entered against defendant in the amount of $60,261.15 with interest and costs.
Defendant initially argues that implicit in the grant of its motion to vacate the default was the finding of a meritorious defense to plaintiff's action and that this finding precluded the subsequent grant of summary judgment. However, it is well settled that courts have inherent power to open defaults beyond that which is contained in the CPLR (Matter of Mento, 33 A.D.2d 650, 305 N.Y.S. 341) and that, where a default judgment is entered without compliance with the necessary requirements therefor, that judgment is a nullity and must be vacated (see, e. g., Contractors' Trading Co., Inc. Henney Contracting Corp., 232 App.Div. 829, 248 N.Y.S. 643). Since here the default judgment was entered before the expiration of the 30-day statutory period in which defendant could appear and answer (see, CPLR 320(a), 3012(c)), it was a nullity and was required to be vacated upon proper motion regardless of any showing of meritorious defense by defendant.
Furthermore, since the motion for summary judgment did not constitute a reargument or modification of the motion to vacate pursuant to CPLR 2221, it need not have been directed to the same judge who...
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