Reid v. Ron Delsener Enterprises, Ltd.

84 A.D.2d 712, 444 N.Y.S.2d 9, 1981 N.Y. App. Div. LEXIS 15866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1981
• Status: Published

Opinion

Order, Supreme Court, New York County (Suttón, J.), entered January 7, 1981, which granted plaintiff’s motion for a default judgment and denied defendant-appellant’s cross motion for leave to vacate the default, unanimously reversed, on the law and in the exercise of discretion, with costs on the appeal to plaintiff, plaintiff’s motion is denied and defendant-appellant’s cross motion is granted on condition that defendant-appellant pay additional costs of $250 to plaintiff within 30 days after service of a copy of the order entered herein. Upon appellant’s failure to meet this condition, order affirmed, with costs. Defendant-appellant’s papers indicate that it may very well have a meritorious defense to this action, to wit, that it was not the corporate entity which promoted the concert. The excuse offered for appellant’s default is that it unintentionally failed to provide the Secretary of State with its new office address so that the Secretary of State’s attempt to forward a copy of the summons and complaint, served on the secretary pursuant to section 306 of the Business Corporation Law, to appellant was frustrated. In light of the possible meritorious defense and on this record we view the default as excusable. However, as a condition for vacating the default, appellant will pay $250 costs to plaintiff for the inconvenience caused by the delay. Upon appellant’s failure to pay such costs, the order is affirmed. Appellant’s time to serve an answer is extended until 10 days after payment of such costs. Concur —• Murphy, P. J., Birns, Ross, Lupiano and Silverman, JJ.