Opinion
2012-10-24
CROWN WATERPROOFING, INC., respondent, v. TADCO CONSTRUCTION CORP., appellant.
Bryan Ha, New York, N.Y., for appellant. Lyons McGovern, LLP, White Plains, N.Y. (Desmond C.B. Lyons and Diane B. Cavanaugh of counsel), for respondent.
Bryan Ha, New York, N.Y., for appellant. Lyons McGovern, LLP, White Plains, N.Y. (Desmond C.B. Lyons and Diane B. Cavanaugh of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August 25, 2010, as denied that branch of its motion which was to vacate an order of the same court entered May 27, 2010, granting those branches of the plaintiff's unopposed motion which were pursuant to CPLR 3126 to strike its answer and for leave to enter a judgment in favor of the plaintiff and against it in the principal sum of $22,365.22.
ORDERED that the order entered August 25, 2010, is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was to vacate the order entered May 27, 2010, is granted, the order entered May 27, 2010, and a judgment of the same court entered July 16, 2010, upon the order entered May 27, 2010, are vacated, and those branches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiff and against the defendant in the principal sum of $22,365.22 are denied.
By order to show cause dated May 3, 2010, the plaintiff moved, inter alia, pursuant to CPLR 3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiff and against the defendant in the principal sum of $22,365.22. The defendant did not oppose the motion. However, although the order to show cause directed the plaintiff to serve the order to show cause and supporting papers upon the defendant's attorney on or before 5:00 P.M. on May 3, 2010, the plaintiff did not properly serve the defendant's attorney within the prescribed time ( seeCPLR 2214[d]; Matter of Feldman v. Feldman, 54 A.D.3d 372, 863 N.Y.S.2d 69;Matter of Kapsis v. Kelleher, 37 A.D.3d 381, 828 N.Y.S.2d 896;European Am. Bank v. Legum, 248 A.D.2d 206, 207, 669 N.Y.S.2d 595). The absence of proper service of an order to show cause is a sufficient and complete excuse for a default on the motion, and deprives the court of jurisdiction to entertain the motion ( see Zaidi v. New York Bldg. Contrs., Ltd., 61 A.D.3d 747, 748, 877 N.Y.S.2d 381;Daulat v. Helms Bros., Inc., 32 A.D.3d 410, 411, 819 N.Y.S.2d 557;Bianco v. LiGreci, 298 A.D.2d 482, 748 N.Y.S.2d 503;Welch v. State of New York, 261 A.D.2d 537, 538, 690 N.Y.S.2d 631). Accordingly, the defendant's motion to vacate the order granting those branches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiff and against the defendant in the principal sum of $22,365.22 should have been granted ( seeCPLR 5015 [a][4]; Bianco v. LiGreci, 298 A.D.2d 482, 748 N.Y.S.2d 503;European Am. Bank v. Legum, 248 A.D.2d at 207, 669 N.Y.S.2d 595). Since the court was deprived of jurisdiction to entertain the plaintiff's motion, the order entered May 27, 2010, and the judgment entered July 16, 2010, upon that order, were nullities and must be vacated ( see Financial Servs. Veh. Trust v. Law Offs. of Dustin J. Dente, 86 A.D.3d 532, 533, 926 N.Y.S.2d 326;Bonik v. Tarrabocchia, 78 A.D.3d 630, 632, 910 N.Y.S.2d 530;Bauerlein v. Salvation Army, 74 A.D.3d 851, 857, 905 N.Y.S.2d 215;Welch v. State of New York, 261 A.D.2d at 538, 690 N.Y.S.2d 631).
In light of the foregoing, we need not reach the defendant's remaining contentions.