Opinion
2018–00587 Index No. 5656/08
12-23-2020
U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Gildardo DIEZ, respondent, et al., defendants.
Aldridge Pite, LLP, Melville, N.Y. (Douglas S. Thaler and Kenneth M. Sheehan of counsel), for appellant. Brian McCaffrey, Attorney at Law, P.C., Jamaica, NY, for respondent.
Aldridge Pite, LLP, Melville, N.Y. (Douglas S. Thaler and Kenneth M. Sheehan of counsel), for appellant.
Brian McCaffrey, Attorney at Law, P.C., Jamaica, NY, for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Victor G. Grossman, J.), dated November 15, 2017. The order denied the plaintiff's motion to vacate an order of the same court dated April 20, 2017, which, sua sponte, directed dismissal of the complaint, with prejudice, upon the plaintiff's failure to appear at a scheduled status conference, and restore the action to the calendar.
ORDERED that the order dated November 15, 2017, is reversed, on the law, with costs, and the plaintiff's motion to vacate the April 20, 2017 order and restore the action to the calendar is granted.
The failure to be notified of a court appearance is fatal to the finding of a default (see Matter of 542 A Realty, LLC, 118 A.D.3d 993, 994, 989 N.Y.S.2d 72 ). "Without such notice, [a] plaintiff's failure to appear ... could not qualify as a failure to perform a legal duty, the very definition of a default" ( Pelaez v. Westchester Med. Ctr., 15 A.D.3d 375, 376, 789 N.Y.S.2d 533 ). Thus, where a plaintiff demonstrates that it did not receive notice of the date of a conference, the default is a nullity, and vacatur of the default is required as a matter of law and due process, with no showing required (see Notaro v. Performance Team, 161 A.D.3d 1093, 1095, 77 N.Y.S.3d 700 ).
Here, in support of its motion to vacate its default, the plaintiff submitted an affirmation from its attorney establishing that the plaintiff did not receive notice of certain scheduled court appearances. In opposition, the defendant did not offer any evidence that the plaintiff received notice of the scheduled appearances. Therefore, the plaintiff's default was a nullity, and vacatur of the April 20, 2017 order directing dismissal of the complaint based upon that default is required (see Sposito v. Cutting, 165 A.D.3d 863, 865, 86 N.Y.S.3d 90 ). Accordingly, the Supreme Court should have granted the plaintiff's motion to vacate that order and restore the action to the calendar.
In light of the foregoing, we need not reach the plaintiff's remaining contentions.
MASTRO, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.