GARY E. DICKERSON, JR.,

Plaintiff,

-vs- Index #H-07525

LORI NESS, Individually and

as ADMINISTRATRIX OF THE

ESTATE OF NANCY HARRINGTON;

BONNIE CALDWELL; AND

CODY ATEN,

Defendants.

JOHN L. GOODELL, ESQ.

for Plaintiff

JAMES E. WESTMAN, ESQ.

for Defendant Aten

DECISION AND ORDER

GERACE, J.

In this April 24, 1995 motion, Defendant ATEN, a nonresident defendant served in his home state of South Carolina, seeks to reopen a September 1993 judgment in a partition action. Over a year has elapsed since the judgment, but, the sale was not confirmed until January 7, 1994.

He admits service; admits he did not respond. His reasons: the papers did not indicate a day certain for his court appearance; the process server could not tell him what he was to do but assumed defendant "would receive another paper giving me a Court date"; his employer "did not understand what the papers required me to do"; he contacted an unnamed attorney "through my wife Dawn" who allegedly advised him he "need do nothing" until he received a Court date. He may have a malpractice case against that attorney.

He says the judgment was obtained without a proper hearing. There was no affidavit merit by defendant's attorney.

Section 911 of the Real Property Actions and Proceedings Law provides that if a defendant has defaulted in appearing, the court is to "ascertain the rights, shares and interests of the several parties in the property, by reference or otherwise, before interlocutory judgment is rendered."

There were no formal proceedings either by the Court or by reference to determine the rights and interests of the several parties or to ascertain liens on undivided interests. RPTL 911, 913; no abstract of title presented to the Court.

Plaintiff says that because his client was in the military service, the Court accepted the allegations in the complaint as proof of the rights and interests of all parties and appointed a referee for the purpose of sale. There is no such statement of the Court in the papers before it.

Plaintiff's justification for the Court ordering a sale was that "the Court noted that this is a country property of 12.5 acres, with a mobile home almost at the middle of the premises, the value of which would be seriously reduced if the property was partitioned in two equal parcels. . .". There is nothing in the complaint or papers on this motion to substantiate that notation by the Court.

At the request of the Court, counsel for plaintiff submitted an unverified list of expenses totalling $2,457.22, much of which could have been avoided had defendant sought better counsel or appeared in the action.

CPLR 5015(a) gives the Court authority to vacate a default judgment "upon such terms as may be just" that can include disbursements, costs and attorney fees to defray actual expenses. DAVID SIEGEL, NEW YORK PRACTICE, Section 482; see HENSEY PROPERTIES, INC. V. LAMAGNA, 23 AD2d 742, 258 NYS2d 495.

ORDERED, ADJUDGED, DECREED:

1. That upon proof that within 20 days after the date of this

decision defendant has deposited the sum of $2,457.22 in the

trust account of attorney Randy Rhinehart, Esq., the referee

appointed herein, which sum may not be disbursed without an order of this Court, the Court will vacate the judgment herein as to all parties, and will permit any defendant to appear and answer within 20 days after service by mail of a copy of the order vacating the judgment.

2. Should defendant fail to deposit said sum within the 20 day

period, plaintiff may submit an order denying the motion of

defendant to vacate the default, with $100.00 costs against

defendant.

3. Without intending to delay or postpone any of the above time requirements, the Court directs counsel to appear before it on June 5, 1995, at 2:30 P.M., for the purpose of attempting to settle the case without the further litigation and expense to the parties.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY EXCEPT AS PROVIDED HEREIN.

Dated: May 16, 1995

Mayville, New York

JOSEPH GERACE

Justice of Supreme Court