CONCEPCION v. TALON REALTY CORP (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Golden, J.), dated January 16, 1998, which granted the defendant's motion, inter alia, for leave to vacate a judgment of the same court dated March 5, 1997, which was in favor of the plaintiff and against it in the principal sum of $200,000 upon its default in appearing.

ORDERED that the order is affirmed, without costs or disbursements.

Pursuant to CPLR 317, relief from a default judgment may be obtained upon a showing that the defendant did not receive actual notice of the summons in time to defend, and has a meritorious defense (see, CPLR 317;  Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Mann-Tell Realty Corp. v. Cappadora Realty Corp., 184 A.D.2d 497, 498, 586 N.Y.S.2d 755).   The defendant established that service of process was made by a method other than personal delivery pursuant to CPLR 308(1) or 308(3), that it did not receive actual notice of the summons in time to defend (see, Fleetwood Park Corp. v. Jerrick Waterproofing Co., 203 A.D.2d 238, 239, 615 N.Y.S.2d 695;  National Bank of Northern N.Y. v. Grasso, 79 A.D.2d 871, 434 N.Y.S.2d 553), and that it has a meritorious defense (see, Anamdi v. Anugo, 229 A.D.2d 408, 644 N.Y.S.2d 804).

MEMORANDUM BY THE COURT.