Opinion
February 20, 1976
Appeal from the Civil Court of the City of New York, New York County, BENTLEY KASSAL, J.
Triantafyllos Thanasoulis for appellants.
David Harrison Storper for respondent.
The statutory mandate (CPLR 3218, subd [a], par 2) that a confession of judgment be entered upon an affidavit by defendant "stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due" is designed for the protection of third persons who might be prejudiced in the event that a collusively confessed judgment is entered, and not for the protection of the defendant (Giryluk v Giryluk, 30 A.D.2d 22, affd 23 N.Y.2d 894; County Nat. Bank v Vogt, 28 A.D.2d 793, affd 21 N.Y.2d 800; CPLR 3218; Practice Commentary by Siegel, C3218:9 in McKinney's Cons Laws of NY, Book 7B). Consistent with such policy, third-person creditors may seek vacatur of confessed judgments by way of motion (County Nat. Bank v Vogt, supra; CPLR 3218, Practice Commentary by Siegel C3218:16). A judgment debtor, however, who seeks relief from his confession of judgment is relegated to a plenary action (McCabe v Allboro Excavation Co., 31 Misc.2d 721; Smith v Kent, 259 App. Div. 117; Magalhaes v Magalhaes, 254 App. Div. 880), as was properly held by the court below in an order affording appellants an ample opportunity to properly proceed which they chose to ignore.
Order, entered August 25, 1975, affirmed, with $10 costs. The appeal from order, entered May 28, 1975 which was superseded by order of August 25, 1975 is dismissed.
Concur: DUDLEY, J.P., HUGHES and RICCOBONO, JJ.