Mann-Tell Realty Corp. v. Cappadora Realty Corp.

184 A.D.2d 497, 586 N.Y.S.2d 755, 1992 N.Y. App. Div. LEXIS 7671

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1992
• Status: Published

Opinion

In an action to recover damages for the breach of a lease, the defendant appeals from an order of the Supreme Court, Nassau County (Becker, J.), dated July 3, 1990, which denied its motion to set aside a default judgment entered against it.

Ordered that the order is affirmed, with costs.

The defendant did not receive actual notice of this action until after a default judgment had been entered against it. Service of process was effected upon the Secretary of State, to whom the defendant had failed to provide a current address.

Under CPLR 317, relief from a default judgment may be obtained upon a showing that the defendant did not receive timely notice of the pendency of the action, and has a meritorious defense (see, Simon & Schuster v Howe Plastics & Chems. Co., 105 AD2d 604; Brac Constr. Corp. v Di-Com Corp., 51 AD2d 740). Although the defendant’s motion to vacate the default judgment was made pursuant to CPLR 5015 (a), under the circumstances of this case, it could have been treated as a motion made under CPLR 317 as well (see, Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 141).

However, we agree with the Supreme Court’s refusal to set aside the default judgment entered against the defendant. The affidavit and affirmation submitted in support of the defendant’s motion fail to demonstrate a meritorious defense (see, International Publs. v Matchabelli, 260 NY 451, 453; Reich v Cochran, 151 NY 122; Mony Credit Corp. v Colt Container Servs., 169 AD2d 760). Thompson, J. P., Bracken, Sullivan and Santucci, JJ., concur.