Brayan v. 520 West 158 Street Housing Development Fund Corporations

Appellate Division of the Supreme Court of New York

Brayan v. 520 West 158 Street Housing Development Fund Corporations

74 A.D.3d 651, 902 N.Y.S.2d 360

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

DecidedJune 22, 2010

StatusPublished

This text of 74 A.D.3d 651 (Brayan v. 520 West 158 Street Housing Development Fund Corporations) 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

Brayan v. 520 West 158 Street Housing Development Fund Corporations, 74 A.D.3d 651, 902 N.Y.S.2d 360 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 2, 2009, which denied defendant’s motion to vacate a default judgment, unanimously affirmed, without costs. Order, same court and Justice, entered August 6, 2009, which, insofar as appealed from as limited by the briefs, reinstated a previously vacated default judgment and award of damages, unanimously modified, on the law, to vacate the damages award and remand for a further inquest on damages, and otherwise affirmed, without costs.

While defendant demonstrated a potentially meritorious defense to plaintiffs action, it failed to show a reasonable excuse for its failure to answer the complaint (see Mutual Mar. Off., Inc. v Joy Constr. Corp., 39 AD3d 417, 419 [2007]). The record makes clear that defendant received the summons and complaint that the Secretary of State mailed to the address on file; the signature of the corporation’s president appears on the postal return receipt (see Crespo v Kynda Cab Corp., 299 AD2d 295 [2002]).

As the record does not demonstrate that defendant received notice of the inquest, defendant must be given “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages” (Ruzal v Mohammad, 283 AD2d 318, 319 [2001] [internal quotation marks and citation omitted]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.

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Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 2, 2009, which denied defendant’s motion to vacate a default judgment, unanimously affirmed, without costs. Order, same court and Justice, entered August 6, 2009, which, insofar as appealed from as limited by the briefs, reinstated a previously vacated default judgment and award of damages, unanimously modified, on the law, to vacate the damages award and remand for a further inquest on damages, and otherwise affirmed, without costs.

While defendant demonstrated a potentially meritorious defense to plaintiffs action, it failed to show a reasonable excuse for its failure to answer the complaint (see Mutual Mar. Off., Inc. v Joy Constr. Corp., 39 AD3d 417, 419 [2007]). The record makes clear that defendant received the summons and complaint that the Secretary of State mailed to the address on file; the signature of the corporation’s president appears on the postal return receipt (see Crespo v Kynda Cab Corp., 299 AD2d 295 [2002]).

As the record does not demonstrate that defendant received notice of the inquest, defendant must be given “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages” (Ruzal v Mohammad, 283 AD2d 318, 319 [2001] [internal quotation marks and citation omitted]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.

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Bluebook (online)

74 A.D.3d 651, 902 N.Y.S.2d 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brayan-v-520-west-158-street-housing-development-fund-corporations-nyappdiv-2010.

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