Opinion
October 24, 1967
Appeal by defendant Frances Mecca from an order of the Supreme Court which denied her application, made pursuant to an order to show cause granted December 10, 1965, to open her default whereby a judgment was entered on September 14, 1961 against her and the codefendant, her husband, in an action for goods sold and delivered for resale in the grocery store allegedly owned and operated by the two defendants. In denying the motion, Special Term held applicable section 108 of the former Civil Practice Act which authorized the court, upon a showing of "excusable neglect" or another of the several grounds specified, to relieve a party from a judgment taken against him, "at any time within one year after notice thereof". In applying section 108, however, Special Term erroneously gave effect to the one-year time limitation, which had not begun to run inasmuch as no "notice" of the judgment had ever been given, within the meaning of the section. ( Redfield v. Critchley, 277 N.Y. 336, 342, mot. for rearg. den. 278 N.Y. 483.) No period of limitation having ever run, CPLR 5015, effective September 1, 1963, substituting "excusable default" for the term "excusable neglect" in section 108 of the Civil Practice Act which it replaced, and providing that the motion to open the default shall be "made within one year after service of a copy of the judgment * * * with written notice of its entry upon the moving party", became applicable here, as "to all further proceedings in pending actions" (CPLR 10003). We agree with the conclusion of the commentators that the traditionally liberal approach followed in applications of this nature "is in no way altered by CPLR 5015, which, like Federal Rule of Civil Procedure 60 from which much of its language is derived, should be liberally construed and applied [citing Klapprott v. United States, 335 U.S. 601]." (5 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5015.02.) Under CPLR 5015, as under section 108 of the former act, the movant is required to show excusable error on his part and a meritorious defense. (Weinstein-Korn-Miller, op. cit., par. 5015.04, pp. 50-177, 50-179.) As to the merits, appellant's affidavit states flatly that her husband and codefendant was the "sole" proprietor of the business, operating it under the name of "Kingsboro Food Market" pursuant to certificate filed in the Fulton County Clerk's office; and avers further that appellant "had no interest in that business and the plaintiff was at all times fully aware of that fact." Dealing with the requirement that the default or neglect be shown "excusable", appellant's moving affidavit states, "That since all of the parties involved knew that the deponent had no interest in said business, she turned the papers over to her husband who assured her that he would turn the papers over to his attorney and that she should not worry about it; that there was no liability on her part * * * That the deponent had no reason to believe that she could be held liable for an indebtedness of the said food market and left the matter up to her husband and his attorney * * * That neither a copy of the judgment or notice of entry thereof was ever served upon the deponent". Upon these papers, Special Term's discretion should have been exercised so as to grant the application upon just terms (CPLR 5015, subd. [a]). Order reversed on the law and the facts and in the exercise of discretion and motion granted, without costs, the order to provide, however, that the judgment stand as security until the final determination of the action. Settle order. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.