Lopez v. Trucking & Stratford, Inc.

299 A.D.2d 187, 749 N.Y.S.2d 524, 2002 N.Y. App. Div. LEXIS 10726

Opinion

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about July 30, 2001, which, in an action for personal injuries allegedly sustained when plaintiff fell on defendant’s premises, denied defendant’s motion to vacate an order granting a default judgment against it on the issue of liability, unanimously affirmed, without costs.

Defendant’s conclusory assertions, made in its attorney’s affirmation, that there are obvious issues of fact relating to notice and comparative negligence, without any further specification whatsoever, fail to show a meritorious defense, and therefore defendant is not entitled to relief under either CPLR 317 or 5015 (see Peacock v Kalikow, 239 AD2d 188, 189, 190; see also Public Serv. Mut. Ins. Co. v Zucker, 225 AD2d 308, 309; Widgren v 313 E. 9th Assoc., 295 AD2d 146).

Plaintiff’s affidavit of mailing of an additional summons and complaint to defendant’s last known address, as required by CPLR 3215 (g) (4) (i), does not indicate, as required by CPLR 3215 (g) (4) (ii), that the additional service was accompanied by a notice to defendant that service had been made on the Secretary of State pursuant to Business Corporation Law § 306 (b). This defect, however, does not warrant vacating the default judgment absent a showing of a meritorious defense (cf. Crespo v A.D.A. Mgt., 292 AD2d 5, 10). Concur — Nardelli, J.P., Mazzarelli, Saxe and Marlow, JJ.