Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered April 8, 2011. The order granted defendant's motion to vacate a judgment entered pursuant to a default under a stipulation of settlement.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate a judgment entered pursuant to a default under a stipulation of settlement is denied as unnecessary.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement which, among other things, provided that defendant would pay the principal sum of $7,008.44 and interest in the sum of $22,991.56 by a specified date, or else plaintiff would be entitled to enter judgment for the full amount demanded in the complaint plus statutory interest, attorney's fees and costs. Upon defendant's failure to make payment within the time period set forth in the stipulation, plaintiff advised defendant by letter that, pursuant to the stipulation, plaintiff would be submitting to the court an attached proposed judgment for the principal sum of $7,008.44 and accrued interest in the sum of $51,314.54. By order to show cause dated January 4, 2011, defendant moved to vacate the "default judgment," attaching a copy of the proposed judgment, arguing that its default under the stipulation was excusable. In fact, no judgment had been entered at the time defendant made its motion. While this motion was pending, unbeknownst to the parties and the motion court, a judgment was entered by the Civil Court clerk on January 31, 2011 which awarded plaintiff the principal sum of $7,008.44 and interest in the sum of $22,991.56, the sums provided for upon compliance with the stipulation. Thereafter, by order entered April 8, 2011, the Civil Court granted defendant's motion. Plaintiff appeals, arguing that the order should be reversed and defendant's motion denied.

The record reflects that defendant's motion sought to vacate a judgment in the sum of $59,327.98 which defendant erroneously believed had been entered against it and that defendant sought, instead, in effect, to pay the amount set forth upon compliance with the stipulation. The judgment which was in fact subsequently entered, unbeknownst to the parties, in effect, awarded plaintiff judgment in the exact amount which defendant had agreed in the stipulation to pay upon [*2]compliance with the stipulation. As the judgment which defendant sought to vacate was never entered, defendant's motion should have been denied as unnecessary. We do not pass upon the propriety of the judgment entered by the clerk on January 31, 2011 or upon the merits of defendant's contention that its default in complying with the terms of the stipulation should be excused.

Accordingly, the order is reversed and defendant's motion to vacate a judgment entered pursuant to a default under a stipulation of settlement is denied as unnecessary.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 08, 2013