Opinion
April 5, 1985
Appeal from the Supreme Court, Erie County, Kane, J.
Present — Hancock, Jr., J.P., Callahan, Boomer, Green and Schnepp, JJ.
Order unanimously reversed, on the law, with costs, and motion granted. Memorandum: After issue was joined in this action, defendant's attorney died. Thereafter, when the matter was called on a Pretrial Calendar, plaintiff's counsel was advised by the calendar Judge to serve a demand upon defendant to appoint substitute counsel and if substitute counsel was not appointed, the matter would be set down for default. Accordingly, plaintiff's counsel served upon defendant a notice to appoint a substitute counsel within 30 days and when no new counsel was appointed within that time, he applied, without further notice to the defendant, for a default judgment. Upon hearing plaintiff's proof, the court granted plaintiff a money judgment against defendant. This appeal is from an order of the court denying defendant's motion to set aside the judgment.
Plaintiff contends that the court properly refused to set aside the judgment because defendant failed to comply with CPLR 5015 (a) (1) by showing that the default was excusable and by moving within one year after the service of the judgment. We conclude that the defendant was not in default at the time the judgment was granted, thus, CPLR 5015 (a) (1) does not apply. CPLR 321 (c) provides for an automatic stay of proceeding upon the death of an attorney of record until 30 days after the service of a notice to appoint another attorney. The failure of the party to appoint another attorney does not place him in default; it merely terminates the stay and permits the opposing party to proceed. A court has inherent power to set aside its judgments for sufficient reasons and it is not limited by statute ( Ladd v Stevenson, 112 N.Y. 325). Since the defendant was not in default at the time the default judgment was taken, the judgment is a nullity and must be vacated ( R.L.C. Investors v. Zabski, 109 A.D.2d 1053; Marazita v. Nelbach, 91 A.D.2d 604; Red Cr. Natl. Bank v. Blue Star Ranch, 58 A.D.2d 983).