The following e-filed documents, listed by NYSCEF document number (Motion 003) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65 were read on this motion to VACATE ORDER. In 2008, plaintiff Barry Goldsmith loaned $300,000 to defendant Locman USA Corp. through a promissory note. In 2014, Locman allegedly defaulted on the remaining balance of the note. In 2019, plaintiff commenced this action by summons and complaint, seeking the unpaid balance on the loan (plus interest) from Locman and from its president, defendant Ben Feigenbaum; and also seeking damages against Feigenbaum for alleged fraud related to the loan. Ten days after filing the complaint, plaintiff filed in this action a motion for summary judgment in lieu of complaint against Locman and Feigenbaum for the unpaid balance on the loan plus interest. This court denied the motion on several grounds, including that the court could not, on the papers before it, ascertain properly the amount to which plaintiff would be entitled. (See NYSCEF No. 15.) Plaintiff then moved to renew and reargue in order to address the deficiencies that this court had identified. On renewal, this court granted summary judgment without opposition against both Locman and Feigenbaum. (See NYSCEF No. 30.) Judgment was then entered based on this court’s order. (See NYSCEF No. 33.) Feigenbaum now moves to vacate the order granting summary judgment as against him (and the judgment entered against him on that order); and he seeks, upon vacatur, dismissal of the claims against him made in the complaint, as well. Feigenbaum also seeks the disqualification of Goldsmith’s counsel, Jonathan Fisher, Esq., under the advocate-witness rule. The motion to vacate and to dismiss is granted; the motion to disqualify is denied without prejudice as academic. DISCUSSION I. Feigenbaum’s Request to Vacate the Judgment Against Him Feigenbaum first seeks vacatur under CPLR 5015 (a) (1) and CPLR 317 of this court’s order granting summary judgment against him, and of the judgment entered on that order. His argument is simple: (i) he was never served with either the initial summons and complaint or the motion for summary judgment in lieu of complaint (see NYSCEF No. 35 at 5-7); and (ii) he has a potentially meritorious defense because he is not personally liable on the Locman note (see id. at 8-9). This court agrees. A. Reasonable Excuse Feigenbaum has submitted an affidavit flatly denying service of any papers in the action. (See NYSCEF No. 58 at
