Mid-Hudson Co-Operative Ins. Co. v. Kingston Fire Equipment, Inc.

Appellate Division of the Supreme Court of New York

Mid-Hudson Co-Operative Ins. Co. v. Kingston Fire Equipment, Inc.

56 A.D.2d 535, 866 N.Y.S.2d 883

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

DecidedNovember 12, 2008

StatusPublished

This text of 56 A.D.2d 535 (Mid-Hudson Co-Operative Ins. Co. v. Kingston Fire Equipment, 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

Mid-Hudson Co-Operative Ins. Co. v. Kingston Fire Equipment, Inc., 56 A.D.2d 535, 866 N.Y.S.2d 883 (N.Y. Ct. App. 2008).

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Opinion

— In an action to recover damages for injury to property due to a fire, the defendant Morgan Fuel & Heating Co., Inc., doing business as Bottini Fuel, appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated July 5, 2007, which denied its motion to vacate its default in answering the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the appellant’s motion to vacate its default in answering the complaint. While CELR 317 permits a defendant who has been “served with a summons other than by personal [536]*536delivery” to seek relief from a default upon a showing that it did not receive notice of the summons in time to defend and has a meritorious cause of action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405 [2002]), the affidavit of the appellant’s president herein fell short of establishing the appellant’s entitlement to such relief. Spolzino, J.P, Santucci, Miller, Dickerson and Eng, JJ., concur.

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— In an action to recover damages for injury to property due to a fire, the defendant Morgan Fuel & Heating Co., Inc., doing business as Bottini Fuel, appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated July 5, 2007, which denied its motion to vacate its default in answering the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in denying the appellant’s motion to vacate its default in answering the complaint. While CELR 317 permits a defendant who has been “served with a summons other than by personal [536]*536delivery” to seek relief from a default upon a showing that it did not receive notice of the summons in time to defend and has a meritorious cause of action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405 [2002]), the affidavit of the appellant’s president herein fell short of establishing the appellant’s entitlement to such relief. Spolzino, J.P, Santucci, Miller, Dickerson and Eng, JJ., concur.

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Bluebook (online)

56 A.D.2d 535, 866 N.Y.S.2d 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mid-hudson-co-operative-ins-co-v-kingston-fire-equipment-inc-nyappdiv-2008.

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