| Maron v Crystal Bay Imports, Ltd. |
| 2012 NY Slip Op 06924 [99 AD3d 867] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Jacqueline A. Maron et al., Respondents, v Crystal BayImports, Ltd., Defendant, and Honda Lease Trust, Appellant. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries and wrongful death, etc., thedefendant Honda Lease Trust appeals from an order of the Supreme Court, Kings County(Partnow, J.), dated January 31, 2012, which denied its motion pursuant to CPLR 317 to vacate ajudgment of the same court dated November 1, 2011, which, upon an order of the same courtdated May 27, 2008, as amended June 17, 2008, granting the plaintiffs' unopposed motion forleave to enter judgment on the issue of liability upon its failure to appear or answer thecomplaint, and after an inquest on the issue of damages, is in favor of the plaintiffs and against itin the principal sum of $10,000,000.
Ordered that the order dated January 31, 2012, is reversed, on the law, with costs, the motionof the defendant Honda Lease Trust pursuant to CPLR 317 to vacate the judgment datedNovember 1, 2011, is granted, the judgment is vacated, the plaintiffs' motion for leave to enterjudgment on the issue of liability is denied, the order dated May 27, 2008, as amended June 17,2008, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County,for further proceedings.
"Pursuant to CPLR 317, '[a] person served with a summons other than by personal deliveryto him [or her] or his [or her] agent for service designated under [CPLR] 318, within or withoutthe state, who does not appear may be allowed to defend the action' by seeking to vacate a defaultjudgment within one year of learning of the judgment upon demonstrating a potentiallymeritorious defense" (Matter ofRockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1081 [2011], quotingCPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142[1986]; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728 [1983]; Fleisher v Kaba, 78 AD3d 1118,1119 [2010]; Cohen v Michelle TenantsCorp., 63 AD3d 1097, 1098 [2009]). The defendant Honda Lease Trust (hereinafterHLT), which was served by service of process upon the Secretary of State, established that it didnot receive personal notice of the summons in time to defend (see Fleisher v Kaba, 78AD3d at 1119; Cohen v Michelle Tenants Corp., 63 AD3d at 1098; Girardo v 99-27 Realty, LLC, 62 AD3d659, 660 [2009]; Tselikman vMarvin Ct., Inc., 33 AD3d 908, 909 [2006]). Furthermore, there is no basis in the recordto conclude that HLT deliberately attempted to avoid notice of the action (see Eugene DiLorenzo, [*2]Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143;Fleisher v Kaba, 78 AD3d at 1119; Cohen v Michelle Tenants Corp., 63 AD3d at1098; Girardo v 99-27 Realty, LLC, 62 AD3d at 660; Tselikman v Marvin Ct.,Inc., 33 AD3d at 909). In addition, HLT established the existence of a potentially meritoriousdefense (see generally 49 USC § 30106 [a]; Ballatore v HUB Truck Rental Corp., 83 AD3d 978, 979 [2011];Burrell v Barreiro, 83 AD3d984, 985 [2011]; Zegarowicz vRipatti, 77 AD3d 650, 652 [2010]). Accordingly, the Supreme Court should havegranted HLT's motion pursuant to CPLR 317 to vacate the judgment, entered upon its failure toappear or answer.
In light of our determination, we need not reach HLT's remaining contentions. Eng, P.J.,Rivera, Hall and Sgroi, JJ., concur.