Gardner v. Another Phyllis's, Inc.

Appellate Division of the Supreme Court of New York

Gardner v. Another Phyllis's, Inc.

216 A.D.2d 620, 627 N.Y.S.2d 582, 1995 N.Y. App. Div. LEXIS 5860

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

DecidedJune 1, 1995

StatusPublished

Cited by1 cases

This text of 216 A.D.2d 620 (Gardner v. Another Phyllis's, 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

Gardner v. Another Phyllis's, Inc., 216 A.D.2d 620, 627 N.Y.S.2d 582, 1995 N.Y. App. Div. LEXIS 5860 (N.Y. Ct. App. 1995).

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Opinion

Appeal from an order of the Supreme Court (Keniry, J.), entered May 23, 1994 in Saratoga County, which granted a motion by defendant Another Phyllis’s, Inc. to vacate a default judgment entered against it.

In this personal injury action, plaintiff served process upon defendant Another Phyllis’s, Inc. (hereinafter defendant) via the Secretary of State. Defendant subsequently moved to vacate the default judgment obtained by plaintiff on the basis that it did not receive actual notice of the pending action. Plaintiff now contends that the default judgment should not have been vacated because defendant failed to show a reasonable excuse for its default. However, insofar as Supreme Court considered defendant’s motion under CPLR 317, which does not require a reasonable excuse, we find this argument to be without merit (see, Executive Motor Car v Allen, 211 AD2d 871). We further find that defendant adequately demonstrated a meritorious defense to the action. Accordingly, we see no reason to disturb Supreme Court’s exercise of its discretion to vacate the default.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur.

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Appeal from an order of the Supreme Court (Keniry, J.), entered May 23, 1994 in Saratoga County, which granted a motion by defendant Another Phyllis’s, Inc. to vacate a default judgment entered against it.

In this personal injury action, plaintiff served process upon defendant Another Phyllis’s, Inc. (hereinafter defendant) via the Secretary of State. Defendant subsequently moved to vacate the default judgment obtained by plaintiff on the basis that it did not receive actual notice of the pending action. Plaintiff now contends that the default judgment should not have been vacated because defendant failed to show a reasonable excuse for its default. However, insofar as Supreme Court considered defendant’s motion under CPLR 317, which does not require a reasonable excuse, we find this argument to be without merit (see, Executive Motor Car v Allen, 211 AD2d 871). We further find that defendant adequately demonstrated a meritorious defense to the action. Accordingly, we see no reason to disturb Supreme Court’s exercise of its discretion to vacate the default.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur.

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Bluebook (online)

216 A.D.2d 620, 627 N.Y.S.2d 582, 1995 N.Y. App. Div. LEXIS 5860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-another-phylliss-inc-nyappdiv-1995.

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