Natradeze v Rubin

Natradeze v Rubin 2006 NY Slip Op 07775 [33 AD3d 535] October 26, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Inga Natradeze et al., Respondents,
v
Elena Rubin, Appellant, et al., Defendants.

—[*1]

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 11, 2005, which denied defendant Rubin's motion to vacate her default, unanimously reversed, on the law, without costs, and the motion granted.

The default order entered was a nullity inasmuch as plaintiffs' default motion papers failed to include either a verified complaint or an affidavit prepared by one having personal knowledge of the facts at issue (see DeLeon v Sonin & Genis, 303 AD2d 291, 292 [2003]). Although Rubin did not appear on plaintiff's motion seeking a default, and for the first time on appeal she challenges the adequacy of plaintiff's motion papers seeking a default, the issue can be reached as it is one that can be decided as a matter of law from the face of the record (see Chateau D' If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Given our conclusion that the challenged order was a "nullity," Rubin's remaining arguments need not be reached. Concur—Saxe, J.P., Friedman, Williams, Catterson and Malone, JJ.