Alto v. Firebaugh Realty Corp.

Appellate Division of the Supreme Court of New York

Alto v. Firebaugh Realty Corp.

33 A.D.3d 738, 822 N.Y.S.2d 610

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 17, 2006

StatusPublished

Cited by4 cases

This text of 33 A.D.3d 738 (Alto v. Firebaugh Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alto v. Firebaugh Realty Corp., 33 A.D.3d 738, 822 N.Y.S.2d 610 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated December 20, 2004, as granted the defendant’s motion to stay an inquest, vacate pursuant to CPLR 317 an order granting the plaintiffs’ motion for leave to enter a default judgment, and dismiss the action as time-barred.

[739]*739Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant’s motion is denied.

The plaintiffs effected service upon the defendant, the owner of the building where the injuries allegedly occurred, pursuant to Business Corporation Law § 306 (b) by delivering two copies of the summons and verified complaint to the Secretary of State. The defendant did not answer, and the plaintiffs’ motion for leave to enter a default judgment was granted. The defendant received notice of the inquest ordered upon the grant of that motion after the plaintiffs served the manager of the building. By affidavit of its certified public accountant, the defendant averred that it had not received the summons and complaint.

The court erred in granting that branch of the defendant’s motion which was to vacate pursuant to CPLR 317 the order granting the plaintiffs’ motion for leave to enter a default judgment (cf. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]). The motion was supported only by the assertions of the defendant’s certified public accountant, who was without personal knowledge of the facts (cf. Piltser v Donna Lee Mgt. Corp., 29 AD3d 973, 974 [2006]; Metropolitan Steel Indus, v Rosenshein Hub Dev. Corp., 257 AD2d 422 [1999]; Balendran v North Shore Med. Group, 251 AD2d 522, 523 [1998]; Matter of Baer v Lipson, 194 AD2d 787 [1993]). In any event, these assertions, even if they were not hearsay, would have been insufficient to establish when the summons and complaint were received, if at all, or that the defendant “did not personally receive notice of the summons in time to defend” (CPLR 317; see Metropolitan Steel Indus, v Rosenshein Hub Dev. Corp., supra).

The reply affidavit of the defendant’s “sole owner and officer” failed to cure the deficiency. In any event, new matters raised for the first time in a reply affidavit are not properly considered (see Hoyte v Epstein, 12 AD3d 487, 488 [2004]; Jackson-Cutler v Long, 2 AD3d 590 [2003]).

Accordingly, the Supreme Court erred in granting the defendant’s motion. Crane, J.P, Ritter, Rivera and Lunn, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated December 20, 2004, as granted the defendant’s motion to stay an inquest, vacate pursuant to CPLR 317 an order granting the plaintiffs’ motion for leave to enter a default judgment, and dismiss the action as time-barred.

[739]*739Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendant’s motion is denied.

The plaintiffs effected service upon the defendant, the owner of the building where the injuries allegedly occurred, pursuant to Business Corporation Law § 306 (b) by delivering two copies of the summons and verified complaint to the Secretary of State. The defendant did not answer, and the plaintiffs’ motion for leave to enter a default judgment was granted. The defendant received notice of the inquest ordered upon the grant of that motion after the plaintiffs served the manager of the building. By affidavit of its certified public accountant, the defendant averred that it had not received the summons and complaint.

The court erred in granting that branch of the defendant’s motion which was to vacate pursuant to CPLR 317 the order granting the plaintiffs’ motion for leave to enter a default judgment (cf. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]). The motion was supported only by the assertions of the defendant’s certified public accountant, who was without personal knowledge of the facts (cf. Piltser v Donna Lee Mgt. Corp., 29 AD3d 973, 974 [2006]; Metropolitan Steel Indus, v Rosenshein Hub Dev. Corp., 257 AD2d 422 [1999]; Balendran v North Shore Med. Group, 251 AD2d 522, 523 [1998]; Matter of Baer v Lipson, 194 AD2d 787 [1993]). In any event, these assertions, even if they were not hearsay, would have been insufficient to establish when the summons and complaint were received, if at all, or that the defendant “did not personally receive notice of the summons in time to defend” (CPLR 317; see Metropolitan Steel Indus, v Rosenshein Hub Dev. Corp., supra).

The reply affidavit of the defendant’s “sole owner and officer” failed to cure the deficiency. In any event, new matters raised for the first time in a reply affidavit are not properly considered (see Hoyte v Epstein, 12 AD3d 487, 488 [2004]; Jackson-Cutler v Long, 2 AD3d 590 [2003]).

Accordingly, the Supreme Court erred in granting the defendant’s motion. Crane, J.P, Ritter, Rivera and Lunn, JJ., concur.

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Bluebook (online)

33 A.D.3d 738, 822 N.Y.S.2d 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alto-v-firebaugh-realty-corp-nyappdiv-2006.

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