| Cohen v Michelle Tenants Corp. |
| 2009 NY Slip Op 05504 [63 AD3d 1097] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Amy Cohen, Appellant-Respondent, v Michelle TenantsCorp., Respondent-Appellant. |
—[*1] MacKay, Wrynn & Brady, LLP, Douglaston, N.Y. (Christine Brennan of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), datedFebruary 26, 2008, as granted that branch of the defendant's motion which was to vacate ajudgment of the same court (O'Donoghue, J.) entered April 19, 2006, which, upon an order of thesame court dated June 27, 2002, granting the plaintiff's unopposed motion for leave to enterjudgment against the defendant on the issue of liability upon its default in appearing oranswering the complaint, and after an inquest on the issue of damages, was in favor of theplaintiff and against the defendant in the principal sum of $140,000, and the defendantcross-appeals, as limited by its brief, from so much of the order dated February 26, 2008, asdenied that branch of its motion which was pursuant to CPLR 3215 (c) to dismiss the complaint.
Ordered that the order dated February 26, 2008 is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
CPLR 317 permits a defendant who has been "served with a summons other than by personaldelivery" to defend the action upon a finding of the court that the defendant "did not personallyreceive notice of the summons in time to defend and has a meritorious defense" (CPLR 317;see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986];Taieb v Hilton Hotels Corp., 60 NY2d 725, 728 [1983]; Reyes v DCH Mgt., Inc.,56 AD3d 644 [2008]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006];Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]). The defendant, which wasserved by service of process upon the Secretary of State, established that it did not receivepersonal notice of the summons in time to defend (see Calderon v 163 Ocean Tenants Corp.,27 AD3d 410, 410-411 [2006]; Ford v 536 E. 5th St. Equities, 304 AD2d 615[2003]). Furthermore, there is no basis to conclude that the defendant deliberately attempted toavoid notice of the action. There was no evidence that the defendant was on notice that an oldaddress was on file with the Secretary of State (see Tselikman v Marvin Ct., Inc., 33AD3d 908, 909 [2006]; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553 [2005];Grosso v MTO Assoc. Ltd. Partnership, 12 AD3d 402 [2004]). In addition, the defendantestablished the existence of a potentially meritorious defense (see Hawkins v CarterCommunity Hous. Dev. Fund [*2]Corp., 40 AD3d 812, 813[2007]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482[2007]).
The Supreme Court properly denied that branch of the defendant's motion which waspursuant to CPLR 3215 (c) to dismiss the complaint. The plaintiff actively took proceedings forthe entry of judgment within one year after the default and thereby complied with the statute(see Bank of N.Y. v Gray, 228 AD2d 399, 400 [1996]; Q.P.I. Rests. v Slevin, 93AD2d 767, 768 [1983]).
The plaintiff's remaining contention is without merit. Rivera, J.P., Dillon, Covello, Eng andHall, JJ., concur.