Malhado v. Cordani

Appeal from an order of the Supreme Court, Queens County (DiTucci, J.), dated February 22, 1988, which granted the defendant’s motion to vacate a judgment by confession entered November 17, 1986, and declared the underlying promissory note void. Ordered that the order is reversed, without costs or disbursements, and the motion is denied, without prejudice to the right of the defendant to commence a plenary action. A person seeking to vacate a confession of judgment and judgment entered thereon must commence a plenary action for that relief (see, Burtner v Burtner, 144 AD2d 417; Affenita v Long Indus., 133 AD2d 727, 728; Wilk v Cohen, 131 AD2d 466). Therefore, the Supreme Court should have denied the defendant’s motion without prejudice to his right to commence an action seeking to set aside the confession of judgment and to vacate the judgment entered thereon. Kooper, J. P., Spatt, Harwood and Rosenblatt, JJ., concur.