Lamberti v Campo

[*1] Lamberti v Campo 2010 NY Slip Op 50490(U) [26 Misc 3d 146(A)] Decided on March 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-494 RI C.

James Lamberti, Respondent,

against

Tyrone Campo, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), dated January 21, 2009, deemed from a judgment of the same court entered January 21, 2009 (see CPLR 5520 [c]). The judgment, entered upon defendant's default, awarded plaintiff the principal sum of $1,970. The appeal from the judgment brings up for review the order dated January 21, 2009 denying defendant's motion, in effect, to open his default on the ground of lack of jurisdiction.

ORDERED that the judgment is reversed without costs, the order dated January 21, 2009 denying defendant's motion, in effect, to open his default on the ground of lack of jurisdiction is vacated, defendant's motion is granted, and the complaint is dismissed.

Plaintiff brought the instant action to recover rent due as well as for the loss of personal property. After defendant failed to appear or answer, an inquest was held, and plaintiff was awarded damages of $1,970. Immediately thereafter, defendant moved, on the ground that he had not received notice of the proceedings, to open his default (see CPLR 5015 [a] [4]). By order dated January 21, 2009, the Civil Court denied the motion and a judgment was entered on the same day in favor of plaintiff in the principal sum of $1,970.

As the right of direct appeal from the order dated January 21, 2009 terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]), we deem the appeal to have been taken from the judgment (see CPLR 5520 [c]). Although generally no appeal lies by a defaulting party from a judgment entered upon default (see CPLR 5511), the instant default judgment is appealable for the purpose of obtaining appellate review of the order [*2]dated January 21, 2009, which determined a motion that was "the subject of contest below" (James v Powell, 19 NY2d 249, 256 n 3 [1967]; see also Central Savannah Riv. Area Resource Dev. Agency v White Eagle Intl., 110 AD2d 742 [1985]) and which necessarily affects the judgment (CPLR 5501 [a] [1]).

While plaintiff claims that service pursuant to CPLR 313 was made in accordance with the requirements of CPLR 308 (4), we find that the service on defendant was ineffective since the pleadings were not affixed to the door of defendant's "actual . . . dwelling place or usual place of abode" (CPLR 308 [4]; see Feinstein v Bergner, 48 NY2d 234 [1979]). "[W]here service of process has been improperly effected, any resulting default judgment is a nullity. This is so even where the defendant had actual notice of the lawsuit and no meritorious defense, for in such a case, the court never had personal jurisdiction over the defendant" (DeMartino v Rivera, 148 AD2d 568, 569 [1989]). In view of the foregoing, since jurisdiction was never acquired over defendant, his motion should have been granted (CPLR 5015 [a] [4]). Accordingly, the judgment is reversed, the order is vacated, defendant's motion is granted, and the complaint is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 2010