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Union National Bank v. Davis

Appellate Division of the Supreme Court of New York, Third Department
Feb 8, 1979
67 A.D.2d 1034 (N.Y. App. Div. 1979)

Opinion

February 8, 1979


Appeal from an order of the Supreme Court at Special Term, entered March 16, 1978, which granted defendant's motion to vacate a default judgment. Default judgments are not favored, since the law prefers that issues be disposed of upon the merits (see Ballard v. Billings Spencer Co., 36 A.D.2d 71, 76). Accordingly, where a default judgment is entered without compliance with the requirements therefor, that judgment is a nullity and must be vacated (Red Creek Nat. Bank v. Blue Star Ranch, 58 A.D.2d 983, 984). CPLR 3215 (subd [e]) provides that the clerk is authorized to enter a default judgment against a defendant only when the proof of service is accompanied by proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Here, the affidavit was made by plaintiff's attorney rather than one of plaintiff's officers and is, therefore, not in compliance with the requirements of CPLR 3215 (subd [e]). Thus, we refrain from considering the issues of excusable default and the presence of a meritorious defense, the grounds relied upon by Special Term in granting defendant's motion (see Woodstock Lake Assoc. v Pleasure Crest Corp., 65 A.D.2d 867). Order affirmed, without costs. Mahoney, P.J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.


Summaries of

Union National Bank v. Davis

Appellate Division of the Supreme Court of New York, Third Department
Feb 8, 1979
67 A.D.2d 1034 (N.Y. App. Div. 1979)
Case details for

Union National Bank v. Davis

Case Details

Full title:UNION NATIONAL BANK, Appellant, v. JAMES L. DAVIS, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Feb 8, 1979

Citations

67 A.D.2d 1034 (N.Y. App. Div. 1979)