Lombardo v. Reed

In an action to recover upon a promissory note, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered July 13, 1989, which, inter alia, granted the defendant’s cross motion (1) to vacate a judgment of the same court entered February 21, 1989, upon the defendant’s alleged default in appearing, and (2) to dismiss the action.

Ordered that the order is affirmed, with costs.

The default judgment was properly vacated. Since the defendant’s timely demand for a complaint extended his time to appear until 20 days after service of the complaint, and the complaint was never served, the defendant was never in default (see, CPLR 3012 [b]).

On this record, it is also clear that the Supreme Court did not improvidently exercise its discretion in dismissing the action pursuant to CPLR 3012 (b). Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.