Income Property Consultants Inc. v. Lumat Realty Corp.

— In an action to recover a real estate broker’s commission, defendants appeal from an order of the Supreme Court, Suffolk County (Robbins, J.), dated April 23,1981, which denied their motion to vacate a default judgment which had been entered against them in the principal amount of $20,000. Order reversed, on the law, with $50 costs and disbursements, and motion granted. In the absence of either a verified complaint or an affidavit by the party setting forth “the facts constituting the claim, the default and the amount due” as required by CPLR 3215 (subd [e]), the entry of a default judgment in the instant case was a nullity and must be vacated (see Natemeier v Heim, 81 AD2d 1008; Georgia Pacific Corp. v Bailey, 77 AD2d 682; Union Nat. Bank v Davis, 67 AD2d 1034), Accordingly, any consideration of the further issues of excusable default and the presence or absence of a meritorious defense has been rendered unnecessary. Damiani, J. P., Titone, Gulotta and Bracken, JJ., concur.-'