Eastern Alloys, Inc. v. Gleason Security Service, Inc.

133 A.D.2d 806, 520 N.Y.S.2d 186, 1987 N.Y. App. Div. LEXIS 51845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1987
• Status: Published

Opinion

In an action to recover damages for breach of contract and negligence, the plaintiff appeals from an order of the Supreme Court, Orange County (Patsalos, J.), dated January 16, 1986, which granted the defendant’s motion pursuant to CPLR 317 to vacate a default judgment entered September 11, 1985, and for leave to serve an answer.

Ordered that the order is affirmed, with costs, and the defendant’s time to interpose an answer is extended until 20 days after service upon it of a copy of this decision and order, with notice of entry.

The defendant moved pursuant to CPLR 317 within one year of the entry of a default judgment against it, seeking to vacate its default and for leave to serve an answer. The summons and complaint were not personally served on the defendant or upon an agent designated by CPLR 318. The Supreme Court did not abuse its discretion in granting the motion upon finding that the defendant "did not personally receive notice of the summons in time to defend and [that the defendant] has a meritorious defense”.

Even though the fault for not having received notice of the summons delivered to the Secretary of State was the defendant’s for not having updated its address on file, that failure was not shown to have been intentional and is not fatal to the defendant’s motion.

There is no claim that the defendant received any other notice of the summons "in time to defend” which in this case would be 30 days from the initial service on the Secretary of State (see, CPLR 320 [a]).

Further, the defendant has shown a sufficient claim of merit to entitle it to a trial on the issues. Lawrence, J. P., Weinstein, Hooper and Sullivan, JJ., concur.