VanDyke v Kelly

[*1] VanDyke v Kelly 2005 NY Slip Op 51591(U) [9 Misc 3d 131(A)] Decided on September 30, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1708 S C

Carol VanDyke and Jack Matheny, Respondents,

against

Fred Kelly, dba The Shoplite, Appellant.

Appeal from (1) a default judgment of the District Court of Suffolk County, Sixth District (James Flanagan, J.), entered August 4, 2004, and (2) an order of the same court, dated October 7, 2004. The default judgment awarded plaintiffs the principal sum of $5,000. The order denied defendant's motion to vacate the default judgment.

Appeal from judgment unanimously dismissed.

Order unanimously reversed without costs, defendant's motion to vacate the default judgment granted and action dismissed.
It is well settled that no appeal lies from a judgment entered upon default (see e.g. Allied Builders v Banjoku, 6 Misc 3d 130[A], 2005 NY Slip Op 50075[U] [App Term, 2d & 11th Jud Dists]). Accordingly, defendant's appeal from the default judgment entered August 4, 2004 is dismissed.

Defendant argues that the default judgment should be vacated, and the case dismissed, because he was not served with the summons and complaint for the instant action. It is well settled that a motion to vacate a default judgment based on improper service may be made at any time (see Roseboro v Roseboro, 131 AD2d 557 [1987]) and if the court, in fact, lacked personal jurisdiction over the defendant, the default judgment must be vacated since it is void (see McMullen v Arnone, 79 AD2d 496 [1981]).

Pursuant to UDCA 1803, the clerk of the Small Claims Court is to provide the defendant with notice of the claim "by ordinary first class mail and certified mail with return receipt requested." The record on appeal, however, contains no certified mail receipt or return receipt [*2]requested card nor any other indication that the notice of claim was ever served. Accordingly, the default judgment is vacated and the case dismissed [*3]
(see e.g. McMullen v Arnone, 79 AD2d 496, supra) for lack of in personam jurisdiction over defendant. The dismissal herein does not preclude plaintiffs, if they be so advised, from commencing an action against defendant based on the same claim.
Decision Date: September 30, 2005