Manhattan Telecom. Corp. v H & A Locksmith, Inc., 2013 NY Slip Op 03867 (2013)
“On November 5, 2009, Vanunu moved to vacate the judgment, asserting that his default was excusable and that he had meritorious defenses to the action. Supreme Court denied the motion, finding that Vanunu’s delay in defending himself was not excusable. The Appellate Division reversed without reaching the issue of excusable default, holding that because “plaintiff failed to provide . . . evidence that [Vanunu] was personally liable for the stated claims . . . . the default judgment was a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 82 AD3d 674 [1st Dept 2011]). The Appellate Division granted leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative, and reverse.”
“The defect in the default judgment before us is not jurisdictional in this sense. A failure to submit the proof required by CPLR 3215(f) should lead a court to deny an application for a default judgment, but a court that does not comply with this rule has merely committed an error — it has not usurped a power it does not have. The error can be corrected by the means provided by law — i.e., by an application for relief from the judgment pursuant to CPLR 5015. It does not justify treating the judgment as a nullity.”
This will be interesting to watch play out. Does the failure to comply with CPLR 3215(f) implicate the meritorious defense branch of CPLR 5015(a)(1), provided that a reasonable excuse is established? This will insulate clerk’s judgments that do not comply 3215(f) where a reasonable excuse is not found on the subsequent 5015(a)(1) motion.