Parker v. Bonitas Youth Services, Inc.

137 A.D.3d 644, 26 N.Y.S.3d 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2016
• Docket: 599N 103629/11
• Status: Published

Opinion

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 2, 2014, which granted defendant’s motion pursuant to CPLR 317 to vacate a default judgment entered against it, unanimously affirmed, without costs.

Defendant established that “[it] did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]).

Defendant established that it had a meritorious defense to the action by submitting an affidavit by its president and founder outlining in detail the routine safety practices defendant used when operating a sump pump and hose to remove flood water from its basement—thereby doing more than merely “generally vouching for the well-maintained condition of the premises” (Zapater v 2540 Assoc., 250 AD2d 508, 508 [1st Dept 1998]; see Peacock v Kalikow, 239 AD2d 188, 190 [1st Dept 1997]).

Concur—Tom, J.P., Friedman, Saxe and Richter, JJ.