Opinion
May 9, 1988
Appeal from the Supreme Court, Nassau County (Oppido, J.).
Ordered that the appeal from the order dated December 12, 1986 is dismissed, as that order was superseded by the order dated February 17, 1987, made upon reargument; and it is further,
Ordered that the order entered February 17, 1987 is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
As a defense to the plaintiffs' medical malpractice action, the defendant asserted that the court lacked personal jurisdiction over him because of improper service of process. A hearing was held to determine whether the defendant was properly served. The hearing court found the service of January 23, 1986 to have been improper and at the same time recognized that the hearing was academic inasmuch as the plaintiffs had arranged to have the defendant re-served prior to the commencement of the hearing.
Following the hearing, the defendant nevertheless entered judgment with the court clerk dismissing the complaint. Upon the plaintiffs' motion, inter alia, to strike the defendant's answer or for "such other and further relief as to this Court may seem just and proper", the court set aside the judgment upon its finding that "such judgment was obtained through misrepresentation and misconduct". Additionally, the court imposed a sanction of $1,000 on defense counsel. Upon reargument, the court adhered to its original decision but reduced the sanction to $250.
Contrary to the defendant's contention, the court's ruling after the hearing did not entitle him to enter judgment dismissing the complaint. It is well settled that the plaintiffs' re-service of the summons and complaint effectively obviated the defendant's jurisdictional objection (Helfand v Cohen, 110 A.D.2d 751; Heusinger v Russo, 96 A.D.2d 883; Dashew v Cantor, 85 A.D.2d 619). The defendant, therefore, had no basis upon which to enter judgment. Under the peculiar circumstances of this case, the court properly found that the entry of such judgment should be equated with "fraud, misrepresentation, or other misconduct" (CPLR 5015 [a] [3]) practiced on the court, which warranted vacatur of the judgment (see, Matter of Holden, 271 N.Y. 212, 218; Shaw v Shaw, 97 A.D.2d 403).
We further find that the imposition of a sanction by the court in the sum of $250 was appropriate under the circumstances presented (see, CPLR 8303-a). Weinstein, J.P., Eiber, Sullivan and Balletta, JJ., concur.