| Ferguson v Shu Ham Lam |
| 2009 NY Slip Op 00645 [59 AD3d 387] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Beth Anna Ferguson, Appellant, v Shu Ham Lam et al.,Defendants, and 104-50 48th Avenue Corp., Respondent. |
—[*1] Ira Levine, Great Neck, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Schulman, J.), dated December 22, 2006, which granted themotion of the defendant 104-50 48th Avenue Corp. to vacate a judgment entered March 31, 2005upon its default in answering the complaint, which was in favor of the plaintiff and against it inthe principal sum of $601,700.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted the motion of thedefendant 104-50 48th Avenue Corp. (hereinafter 48 Corp) to vacate the judgment entered uponits default in answering the complaint. While the failure of 48 Corp to keep a current address onfile with the Secretary of State did not constitute a reasonable excuse to vacate its default underCPLR 5015 (a), it was still entitled to vacatur under CPLR 317, which does not require adefendant to demonstrate a reasonable excuse for its default. CPLR 317 permits a defendant whohas been "served with a summons other than by personal delivery" to seek relief from a defaultupon a showing that it did not receive actual notice of the summons in time to defend and has ameritorious defense (see Fatima vTwenty Seven-Twenty Four Realty Corp., 53 AD3d 564 [2008]; Thakurdyal v 341 Scholes St., LLC, 50AD3d 889, 889-890 [2008]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]). Here, theaffidavit of the president of 48 Corp and the weather report submitted by it set forth sufficientfacts to warrant relief from its default under CPLR 317. Rivera, J.P., Spolzino, Florio andLeventhal, JJ., concur.