N Rogerio Cervantes Figueroa, et al., E Plaintiffs–Respondents, v. LLC

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

N Rogerio Cervantes Figueroa, et al., E Plaintiffs–Respondents, v. Relgold, LLC, Defendant–Appellant.

1049 5

Decided: December 03, 2019

Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ. Shafer Glazer, LLP, New York (Howard S. Shafer of counsel), for appellant. McMahon & McCarthy, Bronx (Matthew J. McMahon of counsel), for respondents.


Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered July 16, 2019, which, in this action for personal injuries, denied defendant's motion to vacate a default judgment in plaintiffs' favor in the amount of $4,200,000, unanimously reversed, on the law, without costs, and the motion granted.

An affidavit from a principal of defendant property owner, who also served as property manager for the premises, established that defendant did not receive timely notice of the action on account of an outdated business address on file with the Secretary of State (see CPLR 317;  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141–142 [1986] ).  The affidavit also showed that defendant had a meritorious defense, in that the default judgment was defective, given the conclusory allegations of a purportedly viable negligence claim (see CPLR 3215[f];  Brown v. Rosendale Nurseries, 259 A.D.2d 256 [1st Dept 1999];  St. Paul Marine Fire & Mar. Ins. Co. v Eastmond & Sons, 244 A.D.2d 294 [1st Dept 1997] ).  Furthermore, the commercial lease for the premises where plaintiff fell indicated that the tenant, which was the injured plaintiff's employer, was responsible for maintaining the nonpublic, allegedly dangerous staircase and for obtaining insurance to indemnify defendant for any liability that arose from the tenant's negligent acts or omissions.