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Joseph Cosentino, Appellant v. Jorge Molina

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 27, 2012

JOSEPH COSENTINO, APPELLANT, --
v.
JORGE MOLINA, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 16, 2010.

Cosentino v Molina

Decided on June 27, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The order, insofar as appealed from, upon granting the branch of plaintiff's motion seeking to vacate an order, entered June 14, 2010, upon plaintiff's default, which had granted defendant's motion to vacate a default judgment and to dismiss the complaint, implicitly denied the branch of plaintiff's motion seeking, upon vacatur of the June 14, 2010 order, to deny defendant's motion to vacate the default judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs, on condition that, within 60 days of the date of this decision and order, defendant serve upon plaintiff and file with the Clerk of the Civil Court, Queens County, an affidavit by defendant, identical to the one submitted in support of his motion to vacate the default judgment, accompanied by a certificate of conformity in compliance with CPLR 2309 (c) and Real Property Law § 299-a (1). In the event that defendant fails to duly serve and file such an affidavit, the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiff's motion seeking, upon vacatur of the June 14, 2010 order entered upon his default, to deny defendant's motion to vacate the default judgment is granted.

In this action to recover damages for personal injuries, defendant initially failed to appear in the action and, following an inquest, a default judgment was entered against him. Defendant thereafter moved to vacate the default judgment and to dismiss the complaint, which motion was granted by order of the Civil Court entered June 14, 2010 upon the default of plaintiff. Subsequently, plaintiff moved to vacate the June 14, 2010 order and, upon vacatur of the order, to deny defendant's motion to vacate the default judgment. Plaintiff appeals from so much of an order of the Civil Court entered November 16, 2010 as implicitly denied the branch of his motion seeking, upon vacatur of the June 14, 2010 order, to deny defendant's motion to vacate the default judgment.

It was not an improvident exercise of discretion for the court to deny the branch of plaintiff's motion seeking, upon vacatur of the June 14, 2010 order, to deny defendant's motion to vacate the default judgment, as defendant demonstrated that he had not received actual notice of the summons and complaint in time to defend the action and that he has a meritorious defense (see CPLR 317; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Pena v Mittleman, 179 AD2d 607 [1992]). Although defendant's affidavit of merit in support of his motion to vacate the default judgment was notarized outside of New York State and was not accompanied by a certificate authenticating the authority of the notary who administered the oath (see CPLR 2309 [c]), this omission was not a fatal defect (see CPLR 2001; Sparaco v Sparaco, 309 AD2d 1029 [2003]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 [1989]; Raytsin v Discover Bank, N.A., 6 Misc 3d 48 [App Term, 2d & 11th Jud Dists 2004]).

Since the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, we affirm the order, insofar as appealed from, on the condition stated above (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Weston, J.P., Pesce and Rios, JJ., concur. Decision

Date: June 27, 2012

20120627

© 1992-2012 VersusLaw Inc.



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