Long Is. Light. Co. v O'Neill

[*1] Long Is. Light. Co. v O'Neill 2015 NY Slip Op 51895(U) Decided on December 15, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2014-2276 N C

Long Island Lighting Company Doing Business as LIPA, Appellant, -

against

Annmarie O'Neill, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated July 30, 2014. The order granted defendant's motion to vacate a default judgment and set the matter down for an inquest on damages.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

Plaintiff commenced this action to recover $6,232.42 allegedly due as a result of defendant's failure to pay her utility bills. After defendant failed to answer or appear, a default judgment was entered against her, by application to the clerk pursuant to CPLR 3215 (a), on September 25, 2008, in the principal sum of $6,232.42. In December 2008, defendant moved to vacate the default judgment, which motion plaintiff opposed. By order dated August 19, 2009, the District Court (Gary Knobel, J.) denied defendant's motion. In June 2014, defendant again moved to vacate the judgment, essentially on the ground of financial hardship. In opposing the motion, plaintiff noted that the judgment had been partially satisfied by means of an income execution, and indicated that plaintiff was willing to settle the remaining balance due. By order dated July 30, 2014, the District Court (Michael A. Ciaffa, J.) vacated the judgment, "due to insufficient proof of sum certain claim," and set the matter down for an inquest on damages. Plaintiff appeals.

Although CPLR 5015 (a) sets forth several grounds authorizing a court, upon motion, to relieve a party from a judgment entered against it, defendant, in her motion papers, established none of these grounds. As no basis was shown to vacate the default judgment entered against her, the District Court should have denied her motion.

We note that the parties did not raise the issue as to whether it was proper for plaintiff to obtain the default judgment against defendant by application to the clerk pursuant to CPLR 3215 (a), which permits the clerk of the court to enter judgment in favor of a plaintiff when "the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain." In any event, we find that the complaint asserted causes of action "for a sum certain," and that, in this case, it was within the authority of the clerk to enter a judgment. Consequently, it was improper for the District Court to vacate the judgment and to order an inquest on damages.

We reach no other issue.

Accordingly, the order is reversed and defendant's motion is denied.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Decision Date: December 15, 2015