WILSON v. SHERMAN TERRACE COOPERATIVE INC

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Supreme Court, Appellate Division, First Department, New York.

Jarmin WILSON, Plaintiff-Appellant, v. SHERMAN TERRACE COOPERATIVE, INC., Defendant-Respondent.

Decided: January 11, 2005

BUCKLEY, P.J., SULLIVAN, NARDELLI, WILLIAMS, SWEENY, JJ. Kramer & Dunleavy, L.L.P., New York (Jonathan R. Ratchik of counsel), for appellant. O'Connor, Redd, Gollihue & Sklarin, LLP, White Plains (Matthew A. Ray of counsel), for respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered on or about March 22, 2004, which, in an action for personal injuries sustained when plaintiff tripped and fell on the sidewalk, used as a driveway, in front of defendant's multiple dwelling, after a hearing, granted defendant's motion to vacate its default in answering the complaint, unanimously affirmed, without costs.

 Defendant showed a reasonable excuse for its default, namely, that its former superintendent, who had been served with the summons and complaint, was unaware of their importance and mislaid them among his other papers, and that defendant did not discover them until after the superintendent had been discharged (cf. Goldman v. Cotter, 10 A.D.3d 289, 291, 781 N.Y.S.2d 28 [2004];  Chase Manhattan Auto. Fin. Corp. v. Allstate Ins. Co., 272 A.D.2d 772, 774, 708 N.Y.S.2d 174 [2000] ).   Plaintiff's claim that service was also made on a second person who appeared to be a supervisor in the office of defendant's management company lacks support in the record (see Warney v. Haddad, 194 A.D.2d 478, 599 N.Y.S.2d 286 [1993], lv. denied 82 N.Y.2d 658, 604 N.Y.S.2d 556, 624 N.E.2d 694 [1993] ).   A meritorious defense was shown by the affidavit of defendant's board member, also a resident of the building, that he never saw any defects in the sidewalk or driveway in front of the building (see Galbreith v. Torres, 9 A.D.3d 304, 780 N.Y.S.2d 586 [2004] ).