A.R.M. Construction, Inc. v. R. J. Taylor Builders, Inc.

Appellate Division of the Supreme Court of New York

A.R.M. Construction, Inc. v. R. J. Taylor Builders, Inc.

177 A.D.2d 903, 576 N.Y.S.2d 661, 1991 N.Y. App. Div. LEXIS 15086

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

DecidedNovember 27, 1991

StatusPublished

This text of 177 A.D.2d 903 (A.R.M. Construction, Inc. v. R. J. Taylor Builders, Inc.) 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

A.R.M. Construction, Inc. v. R. J. Taylor Builders, Inc., 177 A.D.2d 903, 576 N.Y.S.2d 661, 1991 N.Y. App. Div. LEXIS 15086 (N.Y. Ct. App. 1991).

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Opinion

Mahoney, P. J.

Appeal from an order of the County Court of Saratoga County (Simone, Jr., J.), entered November 28, 1990, which granted defendant’s motion to vacate a default judgment entered against it.

Defendant hired plaintiff to perform excavation work on property owned by defendant in Saratoga County. After what is alleged by defendant to be partial completion of the project, plaintiff commenced this action for a claimed unpaid balance of $11,077.36. Plaintiff did so in April 1990 through service of a summons with notice on the Secretary of State who, in turn, forwarded same to defendant at R.D. #8, Route 50, Ballston Spa, New York. Defendant alleges that it never received the summons and that the receipt therefore was returned to the Secretary of State unclaimed. On July 25, 1990 a default judgment was entered in favor of plaintiff for $11,825.97. Defendant then moved to vacate the default judgment. County Court granted the motion and this appeal followed.

We affirm. Defendant’s president states that although the Secretary of State may have been served, defendant had no notice of the action until it attempted to sell certain real property encumbered by the judgment on September 27, 1990, [904]*904at which time defendant expeditiously sought vacatur of the judgment. Defendant also states, and the record indicates, that the amount adjudicated included payment for work still yet to be completed by plaintiff. Accordingly, inasmuch as defendant has demonstrated "a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action” (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141; see, CPLR 5015 [a] [1]), we find no abuse of "the broad discretion” afforded County Court in granting defendant’s motion (see, Jackson v Pelletier, 160 AD2d 604, 605).

Weiss, Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.

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Mahoney, P. J.

Appeal from an order of the County Court of Saratoga County (Simone, Jr., J.), entered November 28, 1990, which granted defendant’s motion to vacate a default judgment entered against it.

Defendant hired plaintiff to perform excavation work on property owned by defendant in Saratoga County. After what is alleged by defendant to be partial completion of the project, plaintiff commenced this action for a claimed unpaid balance of $11,077.36. Plaintiff did so in April 1990 through service of a summons with notice on the Secretary of State who, in turn, forwarded same to defendant at R.D. #8, Route 50, Ballston Spa, New York. Defendant alleges that it never received the summons and that the receipt therefore was returned to the Secretary of State unclaimed. On July 25, 1990 a default judgment was entered in favor of plaintiff for $11,825.97. Defendant then moved to vacate the default judgment. County Court granted the motion and this appeal followed.

We affirm. Defendant’s president states that although the Secretary of State may have been served, defendant had no notice of the action until it attempted to sell certain real property encumbered by the judgment on September 27, 1990, [904]*904at which time defendant expeditiously sought vacatur of the judgment. Defendant also states, and the record indicates, that the amount adjudicated included payment for work still yet to be completed by plaintiff. Accordingly, inasmuch as defendant has demonstrated "a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action” (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141; see, CPLR 5015 [a] [1]), we find no abuse of "the broad discretion” afforded County Court in granting defendant’s motion (see, Jackson v Pelletier, 160 AD2d 604, 605).

Weiss, Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.

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Bluebook (online)

177 A.D.2d 903, 576 N.Y.S.2d 661, 1991 N.Y. App. Div. LEXIS 15086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arm-construction-inc-v-r-j-taylor-builders-inc-nyappdiv-1991.

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