| Foxworth v Jenkins |
| 2008 NY Slip Op 01225 [48 AD3d 1261] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Margaretta Foxworth, Respondent, v John Jenkins, Defendant, andArthur E. Phillips, Appellant. |
—[*1] Vinal & Vinal, Amherst (Jeanne M. Vinal of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredMay 7, 2007. The order denied the motion of defendant Arthur E. Phillips seeking, inter alia, tovacate a default judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen the motor vehicle she was operating was rear-ended by a vehicle owned by Arthur E.Phillips (defendant) on June 11, 2003. Plaintiff attempted to serve the summons and complaintupon defendant in March 2006 by affixing a copy thereof to the door of his last known addressand by mailing a copy to the same address. Defendant, however, had moved from that address atleast one month before plaintiff attempted to serve process, and it is undisputed that he did notlearn of this action until December 26, 2006. Supreme Court granted plaintiff's motion for adefault judgment and awarded plaintiff the sum of $200,000 following an inquest on damages.Defendant thereafter moved, inter alia, to vacate the default judgment and the order awardingplaintiff damages against him pursuant to CPLR 317 and CPLR 5015 on the ground that he wasnot properly served, and the court denied the motion. We affirm.
Pursuant to CPLR 317, "[a] person served with a summons other than by personal delivery. . . who does not appear may be allowed to defend the action . . . upona finding of the court that he [or she] did not personally receive notice of the summons in time todefend and has a meritorious defense." Here, defendant failed to assert a meritorious defense insupport of his motion and thus is not entitled to relief pursuant to CPLR 317 (see Matter of Fotiades, 38 AD3d892 [2007], lv dismissed 9 NY3d 859 [2007]). Defendant also is not entitled to reliefpursuant to CPLR 5015 (see Jefferson vNetusil, 44 AD3d 621, 622 [2007]; Fotiades, 38 AD3d 892). Although CPLR5015 (a) (1) does not explicitly require defendant to present a meritorious defense, we haveconsistently held that a defendant must do so in support of a motion pursuant to CPLR 5015 (a)(1) (see e.g. Matter of Troy D.B. vJefferson County Dept. of Social Servs., 42 AD3d 964, 965 [2007]; Bilodeau-[*2]Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277 [2007]).Present—Martoche, J.P., Centra, Lunn, Green and Gorski, JJ.