Balaguer v. 1854 Monroe Avenue Housing Development Fund Corp.

71 A.D.3d 407, 894 N.Y.S.2d 749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 2010
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered January 28, 2008, which, in an action for personal injuries sustained on defendant’s premises, denied plaintiffs motion for a default judgment and granted defendant’s motion to compel plaintiffs acceptance of its answer, unanimously affirmed, without costs.

Plaintiff is not entitled to a default judgment because, having served defendant pursuant to Business Corporation Law § 306 (b), her motion for a default judgment lacked proof of compliance with the additional service requirements of CPLR 3215 (g) (4) (i) (Admiral Ins. Co. v Marriott Intl., Inc., 67 AD3d 526 [2009], citing, inter alia, Rafa Enters. v Pigand Mgt. Corp., 184 AD2d 329 [1992]; accord Schilling v Maren Enters., 302 AD2d 375 [2003]). Although asserted for the first time on appeal, we reach this issue since the omission is clear on the face of the record and could not have been avoided had it been raised before the motion court (see Rafa Enters., 184 AD2d 329 [1992]). Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Abdus-Salaam, JJ.