Opinion
December 23, 1994
Appeal from the Supreme Court, Steuben County, Scudder, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly vacated the default judgment against defendant James D. Burse. That judgment was a nullity because it was not entered in compliance with CPLR 308 (4) (see, Marazita v Nelbach, 91 A.D.2d 604).
The court erred, however, in failing to vacate the default judgment against defendant Patricia Burse based on plaintiff's failure to comply with the five-day notice requirement of CPLR 3215 (g) (1) (cf., Q.P.I. Rests. v Slevin, 93 A.D.2d 767, appeal dismissed 60 N.Y.2d 676).