Opinion
June 5, 1992
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Denman, P.J., Green, Balio, Boehm and Fallon, JJ.
Order unanimously reversed on the law with costs, motion granted, default judgment vacated and defendant's time to serve an answer extended to 20 days after service of a copy of the order herein with notice of entry. Memorandum: It was error for the court sua sponte to grant a default judgment when plaintiff did not seek such relief (see, Phoenix Enters. Ltd. Partnership v. Insurance Co., 130 A.D.2d 406, 407) and did not submit the proof required under CPLR 3215 (e). In his papers, plaintiff specifically requested summary judgment, not judgment by default. Defendant was not provided notice that a default judgment could be granted (see, CPLR 3215 [f] [1]). Because the default judgment was entered without compliance with the statutory requirements, it is a nullity and must be vacated (see, Marazita v. Nelbach, 91 A.D.2d 604; see also, Burstin v. Public Serv. Mut. Ins. Co., 98 A.D.2d 928; Maidenbaum v. Ellis Hosp., 47 A.D.2d 683). Further, the court abused its discretion in denying defendant's motion to vacate the default and extend the time to answer. Plaintiff was not prejudiced by the default in answering and defendant showed a meritorious defense and a reasonable excuse for the short delay (see, Schlackman v. Martin, 32 A.D.2d 822).
Plaintiff has made no showing of circumstances that would require security and we decline to require an undertaking as a condition of the vacatur of the default judgment (see, Raji v Souri, 99 A.D.2d 433; Mark IV Homes v. Evans Gardens, 57 A.D.2d 701).