NICHOLS v. ABBEY RICHMOND AMBULANCE SERVICE INC

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

Quevani NICHOLS, respondent, v. ABBEY RICHMOND AMBULANCE SERVICE, INC., appellant.

Decided: March 29, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Phillip A. Grimaldi, Jr., Harrison, N.Y., for appellant.

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), dated March 30, 1998, as denied that branch of its motion which was to vacate an order of the same court entered September 18, 1996, granting the plaintiff's motion for summary judgment on the issue of liability upon its default in answering the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to vacate an order of the same court entered September 18, 1996, granting the plaintiff's motion for summary judgment on the issue of liability upon its default in answering the complaint.   The plaintiff established that she effected service upon the defendant by delivering a copy of the summons and verified complaint to the Secretary of State (see, CPLR 311[1];  Business Corporation Law § 306), and the defendant does not contend that the address on file with the Secretary of State was incorrect (see, Rivera v. 999 Realty Mgt., 246 A.D.2d 637, 666 N.Y.S.2d 962).   Since the defendant failed to show that it did not personally receive notice of the summons in time to defend, the motion was properly denied (see, 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).

MEMORANDUM BY THE COURT.

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