| Gonzalez v City of New York |
| 2009 NY Slip Op 06163 [65 AD3d 569] |
| August 11, 2009 |
| Appellate Division, Second Department |
| Jose I. Gonzalez, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Jane L. Gordon of counsel;Edward J. Hynes on the brief), for respondents.
In an action, inter alia, to recover damages for assault and deprivation of civil rights pursuantto 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, QueensCounty (Flug, J.), dated November 5, 2008, which granted the defendants' motion for leave torenew the plaintiff's prior motion for leave to enter a default judgment against the defendantMiguel Carvajal upon that defendant's failure to appear or answer and for leave to renew thedefendants' prior cross motion to vacate the default of the defendant Miguel Carvajal and tocompel the plaintiff to accept their amended answer, which had been determined in an order ofthe same court dated May 9, 2008, and, upon renewal, denied the prior motion and granted theprior cross motion.
Ordered that the order dated November 5, 2008 is affirmed, with costs.
The defendants proffered a reasonable justification for the failure to present the affidavit ofthe defendant Miguel Carvajal in opposition to the plaintiff's prior motion for leave to enter adefault judgment against Carvajal and in support of their prior cross motion, inter alia, to vacateCarvajal's default in appearing in the action or answering the complaint based on the CorporationCounsel's delay in obtaining an affidavit from Carvajal (see CPLR 2221 [e] [2], [3]; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 392 [2008]; Miller v Duffy, 162 AD2d 438, 439-440[1990]; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971 [1987]).
Service upon Carvajal was made, inter alia, by delivery of the summons and complaint to acoworker at Carvajal's actual place of business and by mailing the summons to him at his actualplace of business pursuant to CPLR 308 (2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512, 513 [2007]).Although the defendants' cross motion was made pursuant to CPLR 5015 (a) (1), under thecircumstances of this case, it may also be treated as a motion made pursuant to CPLR 317(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Hospital for Joint Diseases v Lincoln Gen.Ins. Co., 55 AD3d 543, 544 [2008]; Mann-Tell Realty Corp. v Cappadora RealtyCorp., 184 AD2d 497, 498 [1992]). Upon renewal, the defendants established that Carvajaldid not receive [*2]actual notice of the summons in time todefend, he did not deliberately attempt to avoid service, and he has a meritorious defense to theaction (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727 [1983];Franklin v 172 Aububon Corp., 32AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003];Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405 [2002]). Accordingly,upon renewal, the plaintiff's prior motion for leave to enter a default judgment against Carvajalwas properly denied and the defendants' prior cross motion to vacate Carvajal's default and tocompel the plaintiff to accept the amended answer was properly granted. Skelos, J.P., Florio,Balkin, Belen and Austin, JJ., concur.