Westcott v. Niagara-Orient Agency, Inc.

122 A.D.2d 557, 505 N.Y.S.2d 19, 1986 N.Y. App. Div. LEXIS 59831

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1986
• Status: Published

Opinion

— Order unanimously reversed, on the law, without costs, and motion granted, in accordance with the following memorandum: Defendant never received actual notice of the action because the summons and complaint served upon the Secretary of State were forwarded to defendant’s prior business address and returned by postal officials. Since defendant demonstrated a meritorious defense, the court abused its discretion by denying the motion to vacate the default judgment made pursuant to CPLR 317 (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138; Zuppa v Bison Drywall & Insulation Co., 93 AD2d 997).

Moreover, the judgment entered by the clerk upon an unverified complaint and without the affidavit of a party was a nullity and should have been vacated (Natemeier v Heim, 81 AD2d 1008).

Defendant is directed to serve an answer within 20 days of receipt of the order herein. (Appeal from order of Supreme Court, Monroe County, Bergin, J. — vacate default judgment.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.