SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
September 30, 2011
PATRICIA J. CURTO,
MARK DIEHL AND MELISSA SCHMIGEL,
Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), dated December 17, 2009.
Curto v Diehl
Decided on September 30, 2011 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.
(APPEAL NO. 1.)
The order granted the motion of defendants to vacate a default judgment and ordered plaintiff to
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: We reject the contention of plaintiff that Supreme Court erred in granting that part of defendants' motion to vacate a default judgment. Inasmuch as defendants had previously appeared in this action, they were entitled to receive notice of plaintiff's motion for a default judgment (see CPLR 3215 [g] ; Nowak v Oklahoma League for the Blind, 289 AD2d 995). Plaintiff failed to provide defendants with such notice, and thus her motion for a default judgment was defective. We have reviewed plaintiff's remaining contentions and conclude that they are without merit.
Entered: September 30, 2011
Patricia L. Morgan Clerk of the Court
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