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DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should have been granted. Defendant had not changed the address for service on file with the Secretary of State and did not receive the summons and complaint. Plaintiff knew where defendant’s place of business was and had communicated with defendant at that address:

A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see CPLR 317 …). …

There is no evidence in the record that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action … . Although the defendant did not explain why it failed to update its address with the Secretary of State, “there is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse’ for its delay” … . …

… [T]hrough the affidavit of the defendant’s principal averring that the plaintiff failed to comply with the terms of the parties’ oral lease, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Benchmark Farm, Inc. v Red Horse Farm, LLC, 2018 NY Slip Op 04522, Second Dept 6-20-18

​CIVIL PROCEDURE (DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT))/CPLR 317 (DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT))/DEFAULT JUDGMENT, MOTION TO VACATE (DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, DEFENDANT WAS NOT SERVED WITH THE SUMMONS BY PERSONAL DELIVERY AND MOVED TO VACATE WITHIN ONE YEAR OF LEARNING OF THE SUIT (SECOND DEPT))

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