THAKURDYAL v. 341 SCHOLES STREET LLC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated August 7, 2007, as, in effect, granted that branch of the defendant's motion which was pursuant to CPLR 317 to vacate a judgment of the same court (Partnow, J.) entered May 23, 2005, upon its failure to appeal or answer.

ORDERED that the order dated August 7, 2007, is reversed insofar as appealed from, with costs, that branch of the defendant's motion which was pursuant to CPLR 317 to vacate the judgment is denied, and the judgment is reinstated.

Service upon the defendant was effectuated through delivery of the summons and complaint upon the Secretary of State pursuant to Business Corporation Law § 306(b)(1).   A defendant served with a summons other than by personal delivery or to an agent designated under CPLR 318 may obtain relief pursuant to CPLR 317 upon a showing that it did not receive notice of the summons in time to defend, and has a meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142-143, 501 N.Y.S.2d 8, 492 N.E.2d 116;   New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d 968, 815 N.Y.S.2d 478).   Unlike a motion to vacate under CPLR 5015(a)(1), it is unnecessary for a defendant seeking relief under CPLR 317 to demonstrate a reasonable excuse for its default (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d 968, 815 N.Y.S.2d 478;  Marinoff v. Natty Realty Corp., 17 A.D.3d 412, 792 N.Y.S.2d 491;  Paul Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622, 511 N.Y.S.2d 58).

Here, the defendant met its burden of showing that it did not receive actual notice of the summons in time to defend (see New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 A.D.3d 968, 815 N.Y.S.2d 478;  Marine v. Federal Ins. Co., 293 A.D.2d 721, 741 N.Y.S.2d 427;  cf. Kaperonis v. Aetna Cas. & Sur. Co., 254 A.D.2d 334, 678 N.Y.S.2d 298;  Board of Mgrs. of Landings at Patchogue Condominium v. 263 Riv. Ave. Corp., 243 A.D.2d 668, 663 N.Y.S.2d 291;  Fleetwood Park Corp. v. Jerrick Waterproofing Co., 203 A.D.2d 238, 239, 615 N.Y.S.2d 695;  Anchor Sav. Bank v. Alpha Developers, 143 A.D.2d 711, 713-714, 533 N.Y.S.2d 314).   However, the defendant failed to submit competent evidence (see generally Figueroa v. Luna, 281 A.D.2d 204, 205, 721 N.Y.S.2d 635) to demonstrate the existence of a potentially meritorious defense (see Labor Law § 240[1];  Dominguez v. Carioscia, 1 A.D.3d 396, 397, 766 N.Y.S.2d 685;  see e.g. Blair v. Cristani, 296 A.D.2d 471, 745 N.Y.S.2d 468;  Mannes v. Kamber Mgt., 284 A.D.2d 310, 311, 726 N.Y.S.2d 440;  Wasilewski v. Museum of Modern Art, 260 A.D.2d 271, 688 N.Y.S.2d 547;  cf. Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287, 771 N.Y.S.2d 484, 803 N.E.2d 757;  Xidias v. Morris Park Contr. Corp., 35 A.D.3d 850, 851, 828 N.Y.S.2d 432).

Accordingly, the Supreme Court should not have, in effect, granted that branch of the defendant's motion which was pursuant to CPLR 317 to vacate the judgment.