Opinion
July 6, 1967
Order, entered on or about December 5, 1966, in personal injury negligence action, denying defendant-appellant's motion for an order vacating his alleged default and for other relief, unanimously modified, on the law, the facts, and in the exercise of discretion, with $50 costs and disbursements to appellant, to the extent of referring the issue as to whether said defendant was properly served with process to a Special Referee to hear and report to Special Term. Pending the coming in of the Referee's report, final determination of the motion should be held in abeyance. That movant was aware that an action was pending and that a judgment might be entered against him and the circumstance that the Statute of Limitations had run, are irrelevant to the issue of jurisdiction over the person of the defendant. Moreover, even if jurisdiction was obtained over the defendant, default judgment could not validly be entered against him more than one year later without further notice to him (CPLR 3215, subd. [f], par. 1; Mahnk v. Blanchard, 233 App. Div. 555; Kohn v. Kohn, 5 Misc.2d 288). Apart from the question as to whether sufficient cause had been shown to excuse the failure to enter the default judgment within one year pursuant to CPLR 3215 (subd. [c]), if there was no jurisdiction over the person of defendant-appellant no default judgment might be entered. The issue of jurisdiction cannot be resolved upon the papers submitted. Settle order on notice.
Concur — Stevens, J.P., Eager, Capozzoli, Tilzer and Witmer, JJ.