Joshi v. Joshi

Order unanimously reversed on the law without costs, motion granted and judgment vacated. Memorandum: Supreme Court erred in denying defendant’s motion to vacate the default judgment of divorce. The judgment was granted on the same day that the court denied defendant’s motion to dismiss the complaint for failure to state a cause of action and for lack of personal jurisdiction. The record does not support the court’s determination that the notice of motion to dismiss was untimely. Thus, defendant was entitled to an extension of time to serve his answer until 10 days after service of notice of entry of the order denying his motion (see, CPLR 3211 [f]). (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Vacate Default Judgment.) Present— Pine, J. P., Wesley, Callahan, Doerr and Boehm, JJ.