Mintz v. Astoria Holding Corp.

Appellate Division of the Supreme Court of New York

Mintz v. Astoria Holding Corp.

56 A.D.2d 595, 391 N.Y.S.2d 650, 1977 N.Y. App. Div. LEXIS 10663

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

DecidedFebruary 15, 1977

StatusPublished

Cited by2 cases

This text of 56 A.D.2d 595 (Mintz v. Astoria Holding 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.

Bluebook

Mintz v. Astoria Holding Corp., 56 A.D.2d 595, 391 N.Y.S.2d 650, 1977 N.Y. App. Div. LEXIS 10663 (N.Y. Ct. App. 1977).

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Opinion

In an action on a contract, defendant appeals from an order of the Supreme Court, Nassau County, dated July 27, 1976, which denied its motion to vacate a default judgment entered in favor of plaintiff and against it on June 4, 1976. Order reversed, with $50 costs and disbursements, motion granted, with the judgment to stand as security, and the attachment of defendant’s bank account is vacated. Defendant’s time to answer is extended until 20 days after entry of the order to be made hereon. Plaintiff, [596]*596although well aware of the whereabouts of his brother, the president of the defendant corporation, effected service upon the defendant by serving the Secretary of State. Such action renders Trophy Prods, v Cinema-Vue Corp. (53 AD2d 18, 19-20) apposite, for plaintiff "chose to make service on the Secretary of State, knowing that such service * * * was calculated to, and in fact did, avoid actual notice of this action until after judgment was entered.” Since the judgment was procured without actual notice, relief lies under CPLR 5015 (subd [a], par 3). Moreover, defendant has demonstrated excusable default under the circumstances within CPLR 5015 (subd [a], par 1) and the existence of a "colorably meritorious defense”. Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.

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In an action on a contract, defendant appeals from an order of the Supreme Court, Nassau County, dated July 27, 1976, which denied its motion to vacate a default judgment entered in favor of plaintiff and against it on June 4, 1976. Order reversed, with $50 costs and disbursements, motion granted, with the judgment to stand as security, and the attachment of defendant’s bank account is vacated. Defendant’s time to answer is extended until 20 days after entry of the order to be made hereon. Plaintiff, [596]*596although well aware of the whereabouts of his brother, the president of the defendant corporation, effected service upon the defendant by serving the Secretary of State. Such action renders Trophy Prods, v Cinema-Vue Corp. (53 AD2d 18, 19-20) apposite, for plaintiff "chose to make service on the Secretary of State, knowing that such service * * * was calculated to, and in fact did, avoid actual notice of this action until after judgment was entered.” Since the judgment was procured without actual notice, relief lies under CPLR 5015 (subd [a], par 3). Moreover, defendant has demonstrated excusable default under the circumstances within CPLR 5015 (subd [a], par 1) and the existence of a "colorably meritorious defense”. Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.

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Bluebook (online)

56 A.D.2d 595, 391 N.Y.S.2d 650, 1977 N.Y. App. Div. LEXIS 10663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mintz-v-astoria-holding-corp-nyappdiv-1977.

Opinion

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