DePalo v. L.M.T. Realty Co.

Appellate Division of the Supreme Court of New York

DePalo v. L.M.T. Realty Co.

295 A.D.2d 470, 744 N.Y.S.2d 676, 2002 N.Y. App. Div. LEXIS 6452

Appellate Division of the Supreme Court of the State of New York·Decided June 17, 2002·Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Garry, J.), dated January 9, 2001, which denied its motion to vacate a judgment of the same court, entered June 27, 1996, in favor of the plaintiff and against it upon its failure to appear or answer.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the judgment is vacated, and the defendant’s answer is deemed served and filed.

Pursuant to CPLR 317, relief from a default may be obtained upon a showing that a defendant did not receive actual notice of the summons in time to defend and has a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138). Here, the defendant demonstrated its entitlement to relief pursuant to CPLR 317 (see Kavourias v Big Six Pharm., 262 AD2d 456), and the plaintiffs failed to oppose the motion. Accordingly, the defendant’s motion should have been granted. Prudenti, P.J., O’Brien, McGinity and Crane, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Garry, J.), dated January 9, 2001, which denied its motion to vacate a judgment of the same court, entered June 27, 1996, in favor of the plaintiff and against it upon its failure to appear or answer.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the judgment is vacated, and the defendant’s answer is deemed served and filed.

Pursuant to CPLR 317, relief from a default may be obtained upon a showing that a defendant did not receive actual notice of the summons in time to defend and has a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138). Here, the defendant demonstrated its entitlement to relief pursuant to CPLR 317 (see Kavourias v Big Six Pharm., 262 AD2d 456), and the plaintiffs failed to oppose the motion. Accordingly, the defendant’s motion should have been granted. Prudenti, P.J., O’Brien, McGinity and Crane, JJ., concur.

DePalo v. L.M.T. Realty Co., 295 A.D.2d 470, 744 N.Y.S.2d 676, 2002 N.Y. App. Div. LEXIS 6452 (N.Y. Ct. App. 2002).

Pincite

295 A.D.2d 470 (DePalo v. L.M.T. Realty Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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