Raiola v. 1944 Holding Ltd.

1 A.D.3d 296, 767 N.Y.S.2d 595, 2003 N.Y. App. Div. LEXIS 12517

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2003
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 31, 2002, which granted defendant’s motion to vacate a default judgment, unanimously affirmed, without costs.

Defendant’s 1996 default was properly vacated pursuant to CPLR 317 and 5015 (a) upon evidence in the form of detailed affidavits which established that defendant had not personally received notice of the summons in time to defend, and that it had a meritorious defense to plaintiffs’ slip-and-fall personal injury action (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]). There was no basis in the record to conclude that defendant had deliberately attempted to avoid service in this action by its failure to designate a new registered agent for service with the Secretary of State after its initial designated agent retired and closed his law office in 1982 (see Eugene Di Lorenzo, Inc., 67 NY2d at 143; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]). Concur—Nardelli, J.P., Andrias, Rosenberger and Friedman, JJ.