Whitby v. Whitby

• Decision Date: 01 May 2013
• Parties: Norman WHITBY, appellant, v. David WHITBY, respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 729
964 N.Y.S.2d 247
2013 N.Y. Slip Op. 03086

Norman WHITBY, appellant,
v.
David WHITBY, respondent.

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

May 1, 2013.

[964 N.Y.S.2d 248]

Cohen, LaBarbera & Landrigan, LLP, Goshen, N.Y. (Joshua A. Scerbo of counsel), for appellant.

H. Scott Ziemelis, Goshen, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

[106 A.D.3d 729]In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Orange County (Onofry, J.), dated June 4, 2012, which, inter alia, granted that branch of the defendant's motion which was to vacate an order of the same court dated January 3, 2012, granting the plaintiff's motion for leave to enter a default judgment against him, converted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 into one for summary judgment dismissing the complaint, and granted that branch of the motion.

ORDERED that the order dated June 4, 2012, is affirmed, with costs.

The Supreme Court properly granted that branch of the defendant's motion which was to vacate an order dated January 3, 2012, granting the plaintiff's motion for leave to enter a default judgment against the defendant, although it should have done so on the ground that the defendant was never actually in default, and not pursuant to CPLR 5015(a)(1). Service of the summons and complaint was made pursuant to CPLR 308(2), and service was complete on July 4, 2011. The defendant then had 30 days from that date, or until August 3, 2011, to answer. Since the answer was served on August 2, 2011, the defendant was never in default ( see Friedman v. Ostreicher, 22 A.D.3d 798, 803 N.Y.S.2d 703). Therefore, the order directing the entry of a default judgment against the defendant was properly vacated ( see Firemen's Fund Ins. Co. v. Dietz, 110 A.D.2d 1083, 488 N.Y.S.2d 936).

The Supreme Court properly converted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 into one for summary judgment dismissing the complaint, as the parties, by their submissions, demonstrated that they were laying bare their proof and deliberately charting a summary judgment course ( see

[964 N.Y.S.2d 249]

Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 258–259, 955 N.Y.S.2d 384). Further, the Supreme Court properly granted that branch of the motion. A party...