Opinion
April 17, 1975
Appeal from the Genesee Special Term.
Present — Marsh, P.J., Moule, Simons, Mahoney and Goldman, JJ.
Order unanimously reversed, without costs, and matter remitted to Supreme Court, Genesee County for further proceedings in accordance with the following memorandum: This action was commenced to recover a balance due on an open account between a manufacturer and his dealer. The summons with notice was served upon defendants personally, and when they failed to appear a judgment was entered by the clerk upon submission of appropriate proof. Special Term vacated the judgment because the summons failed to state the object of the action (see Arden v Loew's Hotels, 40 A.D.2d 894). The summons in this action contained a notice that upon default judgment would be taken for $11,433.50, "a sum certain" or "a sum which can, by computation, be made certain" (CPLR 305, subd [b]). The case is, therefore, distinguishable from Arden v Loew's Hotels (supra) which involved unliquidated damages. Accordingly, the failure to state the object of the action in this case was not a jurisdictional defect and the clerk was authorized to enter judgment according to the notice as supported by plaintiff's proof (CPLR 3215, subd [e]; see McLaughlin, Practice Commentary, McKinney's Cons. Laws of N.Y. Book 7B, CPLR 305, pp 177-178; 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 305.12, pp 3-134-3-135). The application to vacate the judgment contained sworn affidavits which contradicted the date of service contained in the affidavit of the process server and in which it was claimed that the judgment was entered before the default occurred. This issue of fact should be determined at Special Term. The judgment is reinstated and should stand unless upon remand this issue is resolved against plaintiff (see Treitel v. Arnold Chait, Ltd., 20 A.D.2d 711).