Thomas v. Karen's Body Beautiful, LLC

2021 NY Slip Op 05408

Opinion

Thomas v Karen's Body Beautiful, LLC (2021 NY Slip Op 05408)

Thomas v Karen's Body Beautiful, LLC

2021 NY Slip Op 05408

Decided on October 07, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 07, 2021
Before: Manzanet-Daniels, J.P., Mazzarelli, Moulton, Pitt, JJ.

Index No. 650779/16 Appeal No. 14326 Case No. 2021-00757

[*1]James W. Thomas II, Plaintiff-Respondent,

v

Karen's Body Beautiful, LLC, et al., Defendants-Appellants.

Law Office of Mark H. Goldey, New York (Mark H. Goldey of counsel), for appellant.

Greenberg Freeman LLP, New York (Sanford H. Greenberg of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about November 23, 2020, which denied defendant Rafiq Kalam Id-Din's motion to vacate a default judgment as against him, unanimously reversed, on the law, without costs, and the motion granted.

Kalam Id-Din argues correctly that the default judgment should be vacated as against him because plaintiff failed to show that he complied with CPLR 3215(g)(3)(i). Plaintiff mailed the summons to Kalam Id-Din's places of business, not his place of residence, and he failed to state that Kalam Id-Din's place of residence was unknown. Contrary to plaintiff's contention, since CPLR 3215(g)(3) is meant to protect defendants,

the burden should be on plaintiff to show that he did not know Kalam Id-Din's place of residence, not on Kalam Id-Din to prove that plaintiff knew this information.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 7, 2021