Schmidt v. Dutch Builders, Inc.

111 A.D.2d 799, 491 N.Y.S.2d 6, 1985 N.Y. App. Div. LEXIS 50044

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1985
• Status: Published

Opinion

Appeal by defendant from an order of the Supreme Court, Suffolk County (Underwood, J.), dated October 25, 1983, which denied its motion to vacate a default judgment entered on October 6,1983 in favor of the plaintiff and against it in the sum of $34,354.88.

Order modified, as a matter of discretion, and motion granted to the extent of vacating defendant’s default in appearing and answering. As so modified, order affirmed, without costs or disbursements. Defendant’s time to appear and answer is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry. Pending final determination of the action in the Supreme Court, Suffolk County, the default judgment entered October 6, 1983 shall stand as security.

The plaintiff commenced this action against the defendant by serving the Secretary of State. The defendant defaulted in appearing and answering and judgment was entered against it on October 6, 1983. Upon acquiring notice of the default judgment, the defendant moved to vacate, claiming no actual notice of the action was ever received. Special Term denied the motion.

The plaintiff failed to contest defendant’s allegation that actual notice of the summons and complaint w as not received in time to defend, and defendant may have a meritorious defense. Given the particular circumstances of this case, opening the default is warranted (see, Taieb v Hilton Hotels Corp., 60 NY2d 725). Lazer, J. P., Bracken, O’Connor and Brown, JJ., concur.