Opinion
5008N Index 35966/14E
12-21-2017
NATIONSTAR MORTGAGE, LLC, Plaintiff–Respondent, v. Silvia MARTIN, Defendant–Appellant, Mortgage Electronic Registration Systems, Inc., etc., et al., Defendants.
Bergstein & Ullrich, LLP, New Paltz (Stephen Bergstein of counsel), for appellant. Shapiro, DiCaro & Barak, LLC, Rochester (Jason P. Dionisio of counsel), for respondent.
Bergstein & Ullrich, LLP, New Paltz (Stephen Bergstein of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester (Jason P. Dionisio of counsel), for respondent.
Acosta, P.J., Tom, Webber, Gesmer, Singh, JJ.
Appeal from order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered March 28, 2016, which granted plaintiff's ex parte application for a default judgment and order of reference, deemed an application by defendant Silvia Martin pursuant to CPLR 5704 to vacate said order, and, so considered, said order unanimously vacated, without costs, and plaintiff's ex parte application for a default judgment and order of reference denied, without prejudice to renewal upon notice to defendant as required by CPLR 3215(g)(1).
Defendant's appearance in this action by counsel at three settlement conferences was acknowledged in the motion court's settlement conference orders. As an appearing party, defendant was entitled to five days notice of the default motion ( CPLR 3215[g] ; Walker v. Foreman, 104 A.D.3d 460, 963 N.Y.S.2d 625 [1st Dept. 2013] ). Accordingly, plaintiff's ex parte motion seeking a default judgment and order of reference should have been denied. We exercise our authority under CPLR 5704(a) to vacate the order granting the motion, and to deny the relief requested, without prejudice to renewal upon proper notice to defendant.