Summary
In Martinez v Nguyen (102 AD3d 555, 556 [1st Dept 2013]) the First Department of the Appellate Division held that the Supreme Court "properly denied plaintiff's motion for a default judgment against [defendant], as plaintiff served [defendant] well beyond the 120-day period set forth in CPLR 306-b.
Summary of this case from 28-34 E. 23rd St. v. AbecassisOpinion
2013-01-22
Zoraida MARTINEZ, Plaintiff–Appellant, v. Charles NGUYEN, D.P.M., et al., Defendants, Union Community Health Center, Inc., et al., Defendants–Respondents.
Levine & Grossman, Mineola (Steven Sachs of counsel), for appellant. Gabarini & Scher, P.C., New York (Santosh N. Chitalia of counsel), for respondents.
Levine & Grossman, Mineola (Steven Sachs of counsel), for appellant. Gabarini & Scher, P.C., New York (Santosh N. Chitalia of counsel), for respondents.
FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, ROMÁN, CLARK, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered September 29, 2011, which, in this medical malpractice action, granted defendants-respondents' motion to vacate the default judgment entered against defendant Charles Nguyen, and granted their motion to dismiss the claims and cross claims against Nguyen for lack of personal jurisdiction, unanimously affirmed, without costs. Order, same court (Stanley Green, J.), entered on or about March 23, 2012, which denied plaintiff's motion for a default judgment against Nguyen, unanimously affirmed, without costs.
The court (Aarons, J.) properly vacated the default judgment against Nguyen for lack of personal jurisdiction ( seeCPLR 5015 [a][4] ). The law of the case doctrine does not preclude vacatur in this case, as a court never found that service upon Nguyen was properly effectuated ( cf. Morrison Cohen, LLP v. Fink, 92 A.D.3d 514, 515, 938 N.Y.S.2d 309 [1st Dept. 2012], lv. denied19 N.Y.3d 1017, 951 N.Y.S.2d 713, 976 N.E.2d 241 [2012] ).
Defendants have standing to seek vacatur, as they are “interested persons” within the meaning of CPLR 5015(a). Indeed, defendants, as Nguyen's former employers, could be held vicariously liable for Nguyen's alleged medical malpractice. Accordingly, a “legitimate interest” of defendants will be served by obtaining vacatur ( Oppenheimer v. Westcott, 47 N.Y.2d 595, 602, 419 N.Y.S.2d 908, 393 N.E.2d 982 [1979] [internal quotation marks omitted]; see also Nachman v. Nachman, 274 A.D.2d 313, 315, 710 N.Y.S.2d 357 [1st Dept. 2000] ).
Defendants are not required to establish a reasonable excuse or a meritorious defense in order to obtain vacatur on the ground of lack of personal jurisdiction ( see Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d 1074, 1075, 899 N.Y.S.2d 269 [2d Dept. 2010] ).
The court (Green, J.) properly denied plaintiff's motion for a default judgment against Nguyen, as plaintiff served Nguyen well beyond the 120–day period set forth in CPLR 306–b. Moreover, plaintiff never moved for an extension of time to serve Nguyen. Rather, plaintiff improperly asked for that relief for the first time in her reply papers ( see Singh v. Empire Intl., Ltd., 95 A.D.3d 793, 947 N.Y.S.2d 1 [1st Dept. 2012] ).
We have considered plaintiff's remaining contentions and find them unavailing.