Appellate Division of the Supreme Court of New York, 2002

Samet v. Bedford Flushing Holding Corp.

Appellate Division of the Supreme Court of New York · Decided November 12, 2002

299 A.D.2d 404; 749 N.Y.S.2d 566

Cases that cite this one

25 later published cases cite this decision.

Kircher v. William Penn Life Ins. Co. of N.Y. (Appellate Division of the Supreme Court of New York 2018)
Hon-Kuen Lo v. Gong Park Realty Corp. (Appellate Division of the Supreme Court of New York 2005)
Grosso v. MTO Associates Ltd. Partnership (Appellate Division of the Supreme Court of New York 2004)
Ford v. 536 East 5th Street Equities, Inc. (Appellate Division of the Supreme Court of New York 2003)
Booso v. Tausik Brothers, LLC (Appellate Division of the Supreme Court of New York 2017)
Gershman v. Midtown Moving & Storrage, Inc. (Appellate Division of the Supreme Court of New York 2014)
Trapani v. Windsor Garage, LLC (Appellate Division of the Supreme Court of New York 2014)
Trapani v. Windsor Garage, LLC (Appellate Division of the Supreme Court of New York 2014)
Dias v. North True Construction Management, LLC (Appellate Division of the Supreme Court of New York 2013)
Dias v. North True Construction Management, LLC (Appellate Division of the Supreme Court of New York 2013)
EHS Quickstops Corp. v. GRJH, Inc. (Appellate Division of the Supreme Court of New York 2013)
EHS Quickstops Corp. v. GRJH, Inc. (Appellate Division of the Supreme Court of New York 2013)
Pimento v. Rojas (Appellate Division of the Supreme Court of New York 2012)
Gonzalez v. City of New York (Appellate Division of the Supreme Court of New York 2009)
Trini Realty Corp. v. Fulton Center LLC (Appellate Division of the Supreme Court of New York 2008)
Fatima v. Twenty Seven-Twenty Four Realty Corp. (Appellate Division of the Supreme Court of New York 2008)
Caruso v. Valentin (Appellate Division of the Supreme Court of New York 2008)
Barreno v. S.K. Foods Corp. (Appellate Division of the Supreme Court of New York 2008)
Mid-Hudson Co-Operative Ins. Co. v. Kingston Fire Equipment, Inc. (Appellate Division of the Supreme Court of New York 2008)
Reyes v. Dch Management, Inc. (Appellate Division of the Supreme Court of New York 2008)
Rios v. Starrett City, Inc. (Appellate Division of the Supreme Court of New York 2006)
Sean v. 172 Aububon Corp. (Appellate Division of the Supreme Court of New York 2006)
Cruz v. Narisi (Appellate Division of the Supreme Court of New York 2006)
Marinoff v. Natty Realty Corp. (Appellate Division of the Supreme Court of New York 2005)
Brockington v. Brookfield Development Corp. (Appellate Division of the Supreme Court of New York 2003)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated May 9, 2002, as denied its motion pursuant to CPLR 317 to vacate a judgment of the same court (Archer, J.), dated January 15, 2002, entered upon its failure to appear or answer.

Ordered that the order is reversed insofar as appealed from, with costs, the motion is granted, and the judgment is vacated; and it is further,

Ordered that the defendant’s time to interpose an answer is extended until 20 days after service upon it of a copy of this decision and order.

*405The Supreme Court erred in denying the defendant’s motion pursuant to CPLR 317 to vacate the judgment entered upon its failure to appear or answer. The plaintiff attempted to effect service upon the defendant by serving a copy of the summons and complaint upon the Secretary of State pursuant to Business Corporation Law § 306. The defendant’s address on file with the Secretary of State was its old address, from which it had moved years earlier. The summons and complaint were returned by the postal authorities marked “refused.”

CPLR 317 provides, generally, that a defendant is entitled to vacatur of a default judgment if it is established that the defendant did not receive personal notice of the summons in time to defend and has a meritorious defense (see D & D Asphalt Constr. Corp. v Corealty, LLC, 296 AD2d 432). Contrary to the Supreme Court’s determination, the fact that the defendant failed to notify the Secretary of State of its change of address is not relevant to the issue of whether it is entitled to relief under CPLR 317 (see Stein v Matarasso & Co., 143 AD2d 825; H.K.A. Realty Co. v United Steel & Strip Corp., 88 AD2d 612). There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process (cf. Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621). The defendant’s moving papers sufficiently alleged the existence of meritorious defenses to the action.

Accordingly, the defendant is entitled to vacatur of the judgment entered upon its default pursuant to CPLR 317. Ritter, J.P., Altman, H. Miller and Adams, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.