Guayara v. First Rockaway Coast Corp.

Appellate Division of the Supreme Court of New York

Guayara v. First Rockaway Coast Corp.

35 A.D.3d 659, 827 N.Y.S.2d 253

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

DecidedDecember 19, 2006

StatusPublished

Cited by2 cases

This text of 35 A.D.3d 659 (Guayara v. First Rockaway Coast Corp.) 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.

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Guayara v. First Rockaway Coast Corp., 35 A.D.3d 659, 827 N.Y.S.2d 253 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated July 27, 2005, which denied its motion to vacate a judgment entered upon its default in answering or appearing.

Ordered that the order is affirmed, with costs.

Although the defendant’s motion to vacate was made under CPLR 5015 (a), the defendant correctly contends that such a motion may be treated as a motion pursuant to CPLR 317 if the [660]*660circumstances so warrant (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). Nevertheless, the defendant was not entitled to vacatur pursuant to CPLR 317 because it failed to demonstrate that it did not receive actual notice of this action in time to defend (cf. Tselikman v Marvin Ct., Inc., 33 AD3d 908 [2006]; Calderon v 163 Ocean Tenants Corp., 27 AD3d 410 [2006]) and did not present a meritorious defense (see CPLR 317; General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]). Florio, J.P., Ritter, Goldstein and Covello, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated July 27, 2005, which denied its motion to vacate a judgment entered upon its default in answering or appearing.

Ordered that the order is affirmed, with costs.

Although the defendant’s motion to vacate was made under CPLR 5015 (a), the defendant correctly contends that such a motion may be treated as a motion pursuant to CPLR 317 if the [660]*660circumstances so warrant (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). Nevertheless, the defendant was not entitled to vacatur pursuant to CPLR 317 because it failed to demonstrate that it did not receive actual notice of this action in time to defend (cf. Tselikman v Marvin Ct., Inc., 33 AD3d 908 [2006]; Calderon v 163 Ocean Tenants Corp., 27 AD3d 410 [2006]) and did not present a meritorious defense (see CPLR 317; General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]). Florio, J.P., Ritter, Goldstein and Covello, JJ., concur.

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Bluebook (online)

35 A.D.3d 659, 827 N.Y.S.2d 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guayara-v-first-rockaway-coast-corp-nyappdiv-2006.

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