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Webb v. Pearce

114 A.D.3d 671 Court N.Y. App. Div. Decision date 2014-02-05 English

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p. 671
Maureen Webb, Plaintiff, v Lisa Pearce et al., Defendants. (Action No. 1.) Bartels & Feureisen, Appellant, v Maureen Webb, Respondent. (Action No. 2.)
[979 NYS2d 667]

In two related actions, inter alia, to recover unpaid legal fees, the plaintiff in action No. 2 appeals from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated February 19, 2013, as granted that branch of the motion of the defendant in action No. 2 which was pursuant to CPLR 5015 (a) to vacate a judgment of the same court (Loehr, J.) dated December 17, 2012, which, upon an order of the same court (Loehr, J.) dated December 5, 2012, granting its unopposed motion for leave to enter a judgment against that defendant upon her failure to appear or answer the complaint, is in its favor and against that defendant in the principal sum of $34,843.82.

Ordered that the order dated February 19, 2013, is affirmed insofar as appealed from, with costs.

p. 672
The Supreme Court properly granted that branch of the respondent’s motion which was pursuant to CPLR 5015 (a) (4) to vacate the judgment entered upon her default in appearing or answering the complaint. The evidence in the record established that the address at which the respondent was purportedly served pursuant to CPLR 308 (2) was neither her actual dwelling place nor her usual place of abode (see Merchants Ins. Group v Coutrier, 59 AD3d 602 , 603 [2009]; Bank One Natl. Assn. v Osorio, 26 AD3d 452 , 453 [2006]; Ismailov v Cohen, 26 AD3d 412 , 414 [2006]; Vitello v Rizzo, 298 AD2d 452 , 453 [2002]). Contrary to the appellant’s contention, the respondent was not required to demonstrate a potentially meritorious defense, since the respondent demonstrated that she was not served with process (see CPLR 5015 [a] [4]), and vacatur of the default judgment was required as a matter of law and due process (see Hall Dickler Kent Goldstein & Wood, LLP v McCormick, 36 AD3d 758 , 759 [2007]; Ismailov v Cohen, 26 AD3d at 414 ; Pelaez v Westchester Med. Ctr., 15 AD3d 375 , 376 [2005]). Mastro, J.P, Hall, Austin and Sgroi, JJ., concur.

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