Guayara v First Rockaway Coast Corp.

2006 NYSlipOp 09555

December 19, 2006

Appellate Division, Second Department

As corrected through Wednesday, February 14, 2007

Maria Guayara, Respondent, v First Rockaway Coast Corporation, Appellant.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated July 27, 2005, which denied its motion to vacate a judgment entered upon its default in answering or appearing.

Ordered that the order is affirmed, with costs.

Although the defendant's motion to vacate was made under CPLR 5015 (a), the defendant correctly contends that such a motion may be treated as a motion pursuant to CPLR 317 if the circumstances so warrant (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). Nevertheless, the defendant was not entitled to vacatur pursuant to CPLR 317 because it failed to demonstrate that it did not receive actual notice of this action in time to defend (cf. Tselikman v Marvin Ct., Inc., 33 AD3d 908 [2006]; Calderon v 163 Ocean Tenants Corp., 27 AD3d 410 [2006]) and did not present a meritorious defense (see CPLR 317; General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447 [2005]; New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]). Florio, J.P., Ritter, Goldstein and Covello, JJ., concur.