Rhulen-Immoor, Inc. v. Rivera

Appeal from an order of the Supreme Court at Special Term, entered November 2, 1977 in Sullivan County, which denied appellant’s motion to open a default judgment. The underlying action is one to recover a broker’s fee for the sale of certain property by defendants, Robert and Caroline Fountain, to appellant, Victor Rivera, Jr. The latter denied any liability, contending there was no broker involved in the sale and that plaintiff was a total stranger throughout the transaction. The instant action was commenced against appellant by the service of a summons and notice on February 26, 1974. Appellant failed to appear. A default judgment was filed February 19, 1975 and appellant was notified by letter dated February 20, 1975. An income execution was served on April 26, 1976. A motion to vacate the default was made July 25, 1977. By decision dated September 23, 1977, the court stated that it would permit *1117appellant to open the default but denied the request to vacate a discontinuance stipulation entered into between plaintiff and defendants Fountain. Thereafter, on October 20, 1977, the court, on its own motion, pursuant to CPLR 2001, recalled its prior decision and in a letter memorandum denied appellant’s motion in all respects on the ground that the court exceeded its jurisdiction under CPLR 5015 (subd 1) by acting on appellant’s motion submitted after the one-year period had expired. An order was then entered denying appellant’s motion and this appeal ensued. We disagree with the court’s reason for recalling its prior decision. The court has an inherent power to open judgments in the interest of justice. The power may be exercised even after the expiration of the one year period (Machnick Bldrs. v Grand Union Co., 52 AD2d 655; 9 Carmody-Wait 2d, NY Prac, § 63.190). Consequently, the order must be reversed and the matter remitted to Special Term. Order reversed, on the law and the facts, without costs, and matter remitted for further proceedings not inconsistent herewith. Sweeney, J. P., Kane, Staley, Jr., Larkin and Mikoll, JJ., concur.