| Fleisher v Kaba |
| 2010 NY Slip Op 08898 [78 AD3d 1118] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Alan Fleisher, Respondent, v Mamady Kaba et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Spinner, J.), dated August 26, 2009, which denied theirmotion (a) to vacate a judgment of the same court entered March 3, 2008, upon an order of thesame court dated February 27, 2007, granting the plaintiff's unopposed motion for leave to enterjudgment on the issue of liability upon their default in appearing or answering the complaint andafter an inquest on the issue of damages, which was in favor of the plaintiff and against them inthe principal sum of $500,000, and (b) for leave to serve a late answer.
Ordered that the order dated August 26, 2009, is reversed, on the law, with costs, thedefendants' motion to vacate the judgment entered March 3, 2008, and for leave to serve a lateanswer is granted, the judgment is vacated, the plaintiff's motion for leave to enter judgment onthe issue of liability is denied, and the order dated February 27, 2007, is modified accordingly.
That branch of the defendants' motion which was to vacate the judgment insofar as it wasagainst the defendant Chamise Corp. (hereinafter Chamise), entered upon its failure to appear oranswer, should have been granted. Although the defendants' motion was made pursuant to CPLR5015 (a) (1), under the circumstances of this case, it may also be treated as a motion madepursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d138, 142-143 [1986]; Gonzalez v City of New York, 65 AD3d 569, 570 [2009];Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544 [2008];Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498 [1992]). CPLR317 permits a defendant who has been "served with a summons other than by personal delivery"to defend the action upon a finding of the court that the defendant "did not personally receivenotice of the summons in time to defend and has a meritorious defense" (CPLR 317; seeEugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; Taieb v Hilton HotelsCorp., 60 NY2d 725, 728 [1983]; Cohen v Michelle Tenants Corp., 63 AD3d 1097,1098 [2009]; Reyes v DCH Mgt., Inc., 56 AD3d 644 [2008]; Tselikman v Marvin Ct.,Inc., 33 AD3d 908, 909 [2006]). Chamise, which was served by delivery of copies of thesummons and complaint to the Secretary of State, demonstrated that it did not receive personalnotice of the summons in time to [*2]defend (see Cohen vMichelle Tenants Corp., 63 AD3d at 1098; Girardo v 99-27 Realty, LLC, 62 AD3d659, 660 [2009]; Balchunas v Alitalia-Linee Aeree Italiane-Societa Per Azioni, 40 AD3d789, 790 [2007]). Furthermore, there was no basis to conclude that Chamise deliberatelyattempted to avoid notice of the action. There was no evidence that Chamise was on notice thatan old address was on file with the Secretary of State (see Tselikman v Marvin Ct., Inc.,33 AD3d at 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553 [2005];Grosso v MTO Assoc. Ltd. Partnership, 12 AD3d 402 [2004]). In addition, Chamiseestablished the existence of a potentially meritorious defense (see Tutrani v County ofSuffolk, 10 NY3d 906 [2008]; Foti v Fleetwood Ride, Inc., 57 AD3d 724, 725[2008]; Klopchin v Masri, 45 AD3d 737, 738 [2007]; Chepel v Meyers, 306AD2d 235, 237 [2003]).
That branch of the defendants' motion which was pursuant to CPLR 5015 (a) (4) to vacatethe judgment insofar as it was against the defendant Mamady Kaba should have been granted.There was no affidavit of service or other proof submitted to the Supreme Court on the motion toestablish that the plaintiff effected proper service of process upon Kaba (see Klein vEducational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Pearson v 1296 Pac. St.Assoc., Inc., 67 AD3d 659, 660 [2009]; Munoz v Reyes, 40 AD3d 1059 [2007]). Inthe absence of proper service of process, the resulting default judgment entered against Kaba wasa nullity (see Pearson v 1296 Pac. St. Assoc., Inc., 67 AD3d at 660; Steele vHempstead Pub Taxi, 305 AD2d 401, 402 [2003]).
The defendants' remaining contentions are improperly raised for the first time on appeal.Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.