Crown Waterproofing, Inc. v. Tadco Constr. Corp.

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Docket Number

Attorney(S)

Bryan Ha, New York, N.Y., for appellant. Lyons McGovern, LLP, White Plains, N.Y. (Desmond C.B. Lyons and Diane B. Cavanaugh of counsel), for respondent.

Judges

Mark C. Dillon

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Smart Summary

Factual and Procedural Background

This case involves an action to recover damages for breach of contract. The plaintiff, Crown Waterproofing, Inc., moved pursuant to CPLR 3126 to strike the defendant Tadco Construction Corp.'s answer and for leave to enter a judgment in the principal sum of $22,365.22. The defendant did not oppose the motion. However, the plaintiff failed to properly serve the defendant's attorney with the order to show cause and supporting papers within the time prescribed by the court. The Supreme Court, Westchester County, initially granted the plaintiff's motion and entered a judgment in the plaintiff's favor. The defendant subsequently moved to vacate that order and the judgment entered thereon.

Legal Issues Presented

Whether the failure to properly serve the defendant's attorney with the order to show cause and supporting papers deprived the court of jurisdiction to entertain the plaintiff's motion pursuant to CPLR 3126.
Whether the order striking the defendant's answer and the judgment entered in favor of the plaintiff should be vacated due to the lack of proper service.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Feldman v. Feldman, 54 A.D.3d 372, 863 N.Y.S.2d 69	Proper service requirements for orders to show cause (CPLR 2214[d])	Confirmed that failure to properly serve an order to show cause invalidates the motion.
Matter of Kapsis v. Kelleher, 37 A.D.3d 381, 828 N.Y.S.2d 896	Proper service requirements for orders to show cause	Supported the principle that improper service deprives the court of jurisdiction.
European Am. Bank v. Legum, 248 A.D.2d 206, 669 N.Y.S.2d 595	Service of process and jurisdictional requirements	Reinforced that absence of proper service is a jurisdictional defect.
Zaidi v. New York Bldg. Contrs., Ltd., 61 A.D.3d 747, 877 N.Y.S.2d 381	Effect of improper service on court jurisdiction	Held that improper service deprives the court of jurisdiction to entertain a motion.
Daulat v. Helms Bros., Inc., 32 A.D.3d 410, 819 N.Y.S.2d 557	Jurisdictional consequences of improper service	Applied the principle that improper service invalidates the court’s ability to hear the motion.
Bianco v. LiGreci, 298 A.D.2d 482, 748 N.Y.S.2d 503	CPLR 5015(a)(4) grounds for vacating orders due to lack of jurisdiction	Supported granting the defendant’s motion to vacate due to defective service.
Welch v. State of New York, 261 A.D.2d 537, 690 N.Y.S.2d 631	Effect of lack of proper service on orders and judgments	Confirmed that orders and judgments entered without proper service are nullities.
Financial Servs. Veh. Trust v. Law Offs. of Dustin J. Dente, 86 A.D.3d 532, 926 N.Y.S.2d 326	Vacating void judgments and orders	Applied to vacate the order and judgment entered without jurisdiction.
Bonik v. Tarrabocchia, 78 A.D.3d 630, 910 N.Y.S.2d 530	Vacatur of orders entered without jurisdiction	Supported vacating the defective order and judgment.
Bauerlein v. Salvation Army, 74 A.D.3d 851, 905 N.Y.S.2d 215	Nullity of orders entered without proper service	Reinforced that orders entered without proper service must be vacated.

Court's Reasoning and Analysis

The court determined that the plaintiff failed to properly serve the defendant's attorney with the order to show cause and supporting papers within the prescribed time, as required by CPLR 2214(d). This failure deprived the court of jurisdiction to entertain the plaintiff's unopposed motion pursuant to CPLR 3126 to strike the defendant's answer and to enter judgment. Citing established precedents, the court held that absence of proper service on an order to show cause is a sufficient and complete excuse for a default and renders the court's order and any judgment entered pursuant thereto nullities. Consequently, the defendant's motion to vacate the order and judgment should have been granted. Because the court lacked jurisdiction, the orders entered on May 27, 2010, and July 16, 2010, were vacated. The court did not address the defendant's remaining contentions as the jurisdictional defect was dispositive.

Holding and Implications

Holding: The court reversed the order denying the defendant's motion to vacate the order striking its answer and the judgment entered thereon, granted the defendant's motion to vacate, and denied the plaintiff's motion pursuant to CPLR 3126.

Implications: The direct effect of this decision is to restore the defendant's answer and nullify the judgment entered in favor of the plaintiff due to defective service depriving the court of jurisdiction. The opinion does not establish new precedent but reaffirms the principle that proper service is jurisdictional and essential for the validity of court orders and judgments.

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CROWN WATERPROOFING, INC., respondent, v. TADCO CONSTRUCTION CORP., appellant.

MARK C. DILLON

Bryan Ha, New York, N.Y., for appellant. Lyons McGovern, LLP, White Plains, N.Y. (Desmond C.B. Lyons and Diane B. Cavanaugh of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August 25, 2010, as denied that branch of its motion which was to vacate an order of the same court entered May 27, 2010, granting those branches of the plaintiff's unopposed motion which were pursuant to CPLR 3126 to strike its answer and for leave to enter a judgment in favor of the plaintiff and against it in the principal sum of $22,365.22.

ORDERED that the order entered August 25, 2010, is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was to vacate the order entered May 27, 2010, is granted, the order entered May 27, 2010, and a judgment of the same court entered July 16, 2010, upon the order entered May 27, 2010, are vacated, and those branches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiff and against the defendant in the principal sum of $22,365.22 are denied.

By order to show cause dated May 3, 2010, the plaintiff moved, inter alia, pursuant to CPLR 3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiff and against the defendant in the principal sum of $22,365.22. The defendant did not oppose the motion. However, although the order to show cause directed the plaintiff to serve the order to show cause and supporting papers upon the defendant's attorney on or before 5:00 P.M. on May 3, 2010, the plaintiff did not properly serve the defendant's attorney within the prescribed time ( seeCPLR 2214[d]; Matter of Feldman v. Feldman, 54 A.D.3d 372, 863 N.Y.S.2d 69;Matter of Kapsis v. Kelleher, 37 A.D.3d 381, 828 N.Y.S.2d 896;European Am. Bank v. Legum, 248 A.D.2d 206, 207, 669 N.Y.S.2d 595). The absence of proper service of an order to show cause is a sufficient and complete excuse for a default on the motion, and deprives the court of jurisdiction to entertain the motion ( see Zaidi v. New York Bldg. Contrs., Ltd., 61 A.D.3d 747, 748, 877 N.Y.S.2d 381;Daulat v. Helms Bros., Inc., 32 A.D.3d 410, 411, 819 N.Y.S.2d 557;Bianco v. LiGreci, 298 A.D.2d 482, 748 N.Y.S.2d 503;Welch v. State of New York, 261 A.D.2d 537, 538, 690 N.Y.S.2d 631). Accordingly, the defendant's motion to vacate the order granting those branches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the defendant's answer and for leave to enter a judgment in favor of the plaintiff and against the defendant in the principal sum of $22,365.22 should have been granted ( seeCPLR 5015 [a][4]; Bianco v. LiGreci, 298 A.D.2d 482, 748 N.Y.S.2d 503;European Am. Bank v. Legum, 248 A.D.2d at 207, 669 N.Y.S.2d 595). Since the court was deprived of jurisdiction to entertain the plaintiff's motion, the order entered May 27, 2010, and the judgment entered July 16, 2010, upon that order, were nullities and must be vacated ( see Financial Servs. Veh. Trust v. Law Offs. of Dustin J. Dente, 86 A.D.3d 532, 533, 926 N.Y.S.2d 326;Bonik v. Tarrabocchia, 78 A.D.3d 630, 632, 910 N.Y.S.2d 530;Bauerlein v. Salvation Army, 74 A.D.3d 851, 857, 905 N.Y.S.2d 215;Welch v. State of New York, 261 A.D.2d at 538, 690 N.Y.S.2d 631).

In light of the foregoing, we need not reach the defendant's remaining contentions.