Opinion
March 24, 1986
Appeal from the Supreme Court, Queens County (Kassoff, J.).
Appeals from the orders dated March 7, 1984 and May 2, 1984, respectively, dismissed. No appeal lies from an order denying renewal and/or argument of a decision (see, Matter of Metropolitan Prop. Liab. Ins. Co. v. Boisette, 105 A.D.2d 785).
Order dated May 16, 1984 reversed, the plaintiffs' motion for leave to enter a default judgment denied, and JRS's cross motion for leave to serve an answer granted. The answer shall be served within 10 days after service upon JRS of a copy of the order to be made hereon, with notice of entry.
JRS is awarded one bill of costs.
Before its time to answer the plaintiffs' complaint had expired, JRS joined the individual defendants in moving pursuant to CPLR 3211 (a) (7) to dismiss the complaint as against the individual defendants for failure to state a cause of action. After this motion was granted, neither the plaintiffs nor the defendants served a notice of entry of the order pursuant to CPLR 3211 (f) upon JRS, and JRS never served an answer.
The plaintiffs subsequently moved for leave to enter a default judgment against JRS. JRS opposed the motion and cross-moved for leave to serve an answer.
In a decision dated December 5, 1983, Special Term held that the plaintiffs' motion for leave to enter a default judgment against JRS should be granted on the ground that JRS had failed to serve an answer and was in default. The decision also denied JRS's cross motion, without prejudice to renew on proper papers, because the cross motion was not served in accordance with CPLR 2214 (b).
JRS then moved pursuant to CPLR 2221 for renewal and/or reargument of the December 5, 1983 decision, but this motion was denied in the order dated March 7, 1984.
By order to show cause, JRS then moved for an order vacating the March 7, 1984 order and granting reargument and/or renewal of the December 5, 1983 decision. This motion was denied in the order dated May 2, 1984.
On May 16, 1984, an order was then signed granting the plaintiffs' motion for leave to enter a default judgment against JRS, in the principal sum of $4,500, and denying JRS's cross motion for leave to serve an answer.
It was error for Special Term to have granted the plaintiffs' motion for leave to enter a default judgment against JRS. Because JRS had joined in a motion to dismiss pursuant to CPLR 3211 (a) (7), pursuant to CPLR 3211 (f), its time to answer would not expire until 10 days after service upon it of a copy of the order deciding the motion with notice of entry (cf. United Equity Servs. v. First Am. Tit. Ins. Co., 75 Misc.2d 254).
Since the plaintiffs failed to serve a copy of the order with notice of entry upon JRS, its time to answer was not limited (see, Charshee v. Geraghty, 198 N.Y.S.2d 686). Therefore, JRS was not in default for failing to serve an answer, and its cross motion for leave to serve an answer should have been granted.
We also note that JRS has demonstrated the existence of a meritorious defense. Mangano, J.P., Gibbons, Niehoff and Kunzeman, JJ., concur.