You are here: / / DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED...
,

DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED WITH THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED; THE ADDRESS ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate its default because it was never served with the summons and complaint should have been granted. The defendant demonstrated the address on file with the Secretary of State was incorrect and the failure to update the address was not a deliberate attempt to avoid service:

” CPLR 317 provides, generally, that a defendant is entitled to vacatur of a default judgment if it is established that he [or she] did not receive personal notice of the summons in time to defend and that he [or she] has a meritorious defense'”… . “It is also well established that service on a corporation through delivery of process to the Secretary of State is not personal delivery’ to the corporation or to an agent designated under CPLR 318” … . While it is not necessary for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay … , a defendant is not entitled to relief under that statute where its failure to receive notice of the summons “was a result of a deliberate attempt to avoid such notice” … .

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect, and that it did not receive actual notice of the summons and complaint in time to defend itself against this action … . Contrary to the plaintiff’s contention, an order dated August 21, 2013, issued in connection with the 2009 action, which was mailed to the defendant at the subject property, did not place the defendant on notice that the address on file with the Secretary of State was incorrect  … . In addition, the evidence does not suggest that the defendant’s failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Golden Eagle Capital Corp. v Paramount Mgt. Corp., 2020 NY Slip Op 03770, Second Dept 7-8-20

 

You might also like
THE JURY’S CONCLUSION THAT THE BURGLARY VICTIM SUFFERED “PHYSICAL INJURY” WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE ONLY EVIDENCE WAS THE VICTIM’S TESTIMONY HE SUFFERED PAIN AT 6 ON A SCALE OF 1 TO 10 (SECOND DEPT).
HERE THE NATURE OF INFANT PLAINTIFF’S INJURIES WAS PROBATIVE OF HOW THE ACCIDENT OCCURRED; PLAINTIFF ALLEGED DEFENDANTS’ VAN RAN OVER INFANT PLAINTIFF’S FOOT; DEFENDANTS ALLEGED INFANT PLAINTIFF WAS INJURED WHEN SHE FELL OFF HER BICYCLE; PLAINTIFFS’ MOTION FOR A UNIFIED TRIAL ON LIABILITY AND DAMAGES SHOULD HAVE BEEN GRANTED (SECOND DEPT).
CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL.
PLAINTIFF WAS STRUCK BY A FACE PLATE WHICH FELL OFF AN AIR CONDITIONER, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE UNDER THE DOCTRINE OF RES IPSA LOQUITUR, DEFENDANTS RAISED QUESTIONS OF FACT ABOUT THE CAUSE AND EXCLUSIVE CONTROL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SEOND DEPT).
ALTHOUGH THE PEOPLE MADE AN UNTIMELY MOTION FOR A BUCCAL SWAB FOR DNA TESTING, THE ERROR DID NOT REQUIRE REVERSAL (SECOND DEPT).
JUDGE SHOULD NOT HAVE VACATED DEFENDANT’S GUILTY PLEA OVER DEFENDANT’S OBJECTION 2ND DEPT.
THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).
Duty to Defend Broader than Duty to Indemnify.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT... ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING...