Opinion
No. 2012–292 W C.
2013-05-15
CHERICO, CHERICO AND ASSOCIATES, Respondent, v. Marek HYRA, Appellant.
Appeal from an order of the City Court of White Plains, Westchester County (Brian Hansbury, J.), entered November 14, 2011. The order denied defendant's motion to vacate a default judgment.
Present: NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is granted and the matter is remitted to the City Court for an assessment of damages and for the entry thereafter of an appropriate judgment in favor of plaintiff; and it is further,
ORDERED that pending the assessment of damages and the entry of a new judgment, the judgment entered February 21, 2008 shall continue to stand as security, with execution thereof stayed.
In January 2008, plaintiff law firm commenced this action to recover from defendant, a former client, $4,792.80 in unpaid attorney's fees. After defendant failed to appear or answer the complaint, a default judgment was entered on February 21, 2008, awarding plaintiff the principal sum of $4,792.80. In October 2011, approximately three and one-half years later, defendant moved to vacate the judgment, essentially asserting, among other things, that plaintiff had failed to comply with CPLR 3215(a). By order entered November 15, 2011, the City Court denied defendant's motion, finding that defendant had offered neither a reasonable excuse for his failure to appear or answer nor a meritorious defense, and, in fact, had not established any of the grounds for vacatur of a judgment under CPLR 5015(a).
We agree with the City Court that defendant showed no basis under CPLR 5015(a) to vacate the default judgment. However, since plaintiff asserted, among other things, a cause of action for quantum meruit, which is not a cause of action for a sum certain, the clerk was without statutory authority to enter a clerk's judgment under CPLR 3215(a) ( see Stephen B. Gleich & Assoc. v. Gritsipis, 87 AD3d 216 [2011] ). Consequently, defendant's motion to vacate the default judgment must be granted. We have considered defendant's remaining contentions and find them to be without merit.
Accordingly, defendant's motion to vacate the default judgment is granted and the matter is remitted to the City Court for an assessment of damages and for the entry thereafter of an appropriate judgment in favor of plaintiff.