Spearman v. Atreet Corp.

Appellate Division of the Supreme Court of New York

Spearman v. Atreet Corp.

238 A.D.2d 194, 656 N.Y.S.2d 30, 1997 N.Y. App. Div. LEXIS 3967

Appellate Division of the Supreme Court of the State of New York·Decided April 15, 1997·Published·Cited by 6 cases

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered April 25, 1996, which inter alia, granted defendant-respondent’s motion to vacate a default judgment, unanimously affirmed, without costs.

The motion court erred in holding that it lacked jurisdiction over defendant, such having been obtained by the service that was made on the Secretary of State irrespective of whether the process subsequently reached defendant (Associated Imports v Amiel Publ., 168 AD2d 354, lv dismissed 77 NY2d 873). Nevertheless, we affirm because defendant’s nonreceipt of process, possibly by reason of the incorrect address set forth in the summons and complaint, constitutes a reasonable excuse for the default in answering (Micarelli v Regal Apparel, 52 AD2d 524), and its assertion, that plaintiff was injured in an area not readily accessible to the general public, sets forth a meritorious defense. The complaint, never having been dismissed, need not now be reinstated. Concur—Murphy, P. J., Wallach, Mazzarelli and Andrias, JJ.

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—Order, Supreme Court, New York County (William Davis, J.), entered April 25, 1996, which inter alia, granted defendant-respondent’s motion to vacate a default judgment, unanimously affirmed, without costs.

The motion court erred in holding that it lacked jurisdiction over defendant, such having been obtained by the service that was made on the Secretary of State irrespective of whether the process subsequently reached defendant (Associated Imports v Amiel Publ., 168 AD2d 354, lv dismissed 77 NY2d 873). Nevertheless, we affirm because defendant’s nonreceipt of process, possibly by reason of the incorrect address set forth in the summons and complaint, constitutes a reasonable excuse for the default in answering (Micarelli v Regal Apparel, 52 AD2d 524), and its assertion, that plaintiff was injured in an area not readily accessible to the general public, sets forth a meritorious defense. The complaint, never having been dismissed, need not now be reinstated. Concur—Murphy, P. J., Wallach, Mazzarelli and Andrias, JJ.

Spearman v. Atreet Corp., 238 A.D.2d 194, 656 N.Y.S.2d 30, 1997 N.Y. App. Div. LEXIS 3967 (N.Y. Ct. App. 1997).

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238 A.D.2d 194 (Spearman v. Atreet Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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