Nat Levine Et Al. v. Milton Berlin Et Al‪.‬

Plaintiffs commenced this action on or about April 19, 1973, seeking, inter alia, (1) to vacate a default judgment entered against plaintiff Nat Levine on January 24, 1968, which was thereafter assigned to defendant Midas Collections, Inc., on January 23, 1969, and (2) to cancel the defendant Sheriffs deed, dated on or about April 28, 1969, which was issued to defendant Midas upon the execution sale of Levines interest in the marital residence shared by plaintiffs. The original judgment-creditor was not made a party to the action and, insofar as the record indicates, was not notified of the pendency of the action. The procedure for relief from a default judgment is prescribed in CPLR 317, 5015 (subd. [a]). Each of these statutes envisions the making of a motion in the original action by the aggrieved party. In the absence of certain elements neither pleaded nor present at bar, such a motion is the only proper procedure; a plenary action for such relief will not lie (Tomasello Bros. v. Friedman, 57 Misc. 2d 817, affd. 32 A.D.2d 652). We have, however, reviewed the allegations of the complaint in this respect and hold that such a motion, had it been made, would have had to be denied. In order to obtain relief from a default judgment, an aggrieved party should [46 A.D.2d 902 Page 903]