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Patricia J. Curto v. Mark Diehl and Melissa Schmigel

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


September 30, 2011

PATRICIA J. CURTO,
PLAINTIFF-APPELLANT,
v.
MARK DIEHL AND MELISSA SCHMIGEL,
DEFENDANTS-RESPONDENTS.

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 provide discovery.

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] [1]; 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

20110930

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