Interesting CPLR 5015(a)(4)

CPLR R. 5015 Relief from judgment or order
(a) On motion
(4) lack of jurisdiction to render the judgment or order

Pavlou v Associates Food Stores, Inc., 2012 NY Slip Op 04982 (2nd Dept. 2012)

In an order entered April 21, 2010, the Supreme Court, sua sponte, dismissed this action pursuant to 22 NYCRR 202.27 on the ground that the plaintiffs failed "to proceed as directed by the court" when they did not appear on a scheduled court date. The plaintiffs demonstrated that they did not have notice of the trial calendar call of the action through the uncontroverted affidavit of their attorney, which stated that counsel did not receive any notice for a court appearance (see M.S. Hi-Tech, Inc. v Thompson, 23 AD3d 442, 443). Without notice of the court appearance, the plaintiffs' default was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Bonik v Tarrabocchia, 78 AD3d 630, 632; Tragni v Tragni, 21 AD3d 1084, 1085; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). In this situation, vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required (see Bonik v Tarrabocchia, 78 AD3d at 632; Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Accordingly, the plaintiffs' motion, in effect, to vacate the order entered April 21, 2010, sua sponte, dismissing the action, and to restore the action to the trial calendar should have been granted.

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