Brayan v 520 W. 158 St. Hous. Dev. Fund Corps.

Brayan v 520 W. 158 St. Hous. Dev. Fund Corps. 2010 NY Slip Op 05489 [74 AD3d 651] June 22, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Ramon Brayan, an Infant by His Mother and Natural Guardian, Orquedia del Carmen Brito, et al., Respondents,
v
520 West 158 Street Housing Development Fund Corporations, Appellant.

—[*1] JosÉ Luis Torres, White Plains, for appellant.

Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondents.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 2, 2009, which denied defendant's motion to vacate a default judgment, unanimously affirmed, without costs. Order, same court and Justice, entered August 6, 2009, which, insofar as appealed from as limited by the briefs, reinstated a previously vacated default judgment and award of damages, unanimously modified, on the law, to vacate the damages award and remand for a further inquest on damages, and otherwise affirmed, without costs.

While defendant demonstrated a potentially meritorious defense to plaintiff's action, it failed to show a reasonable excuse for its failure to answer the complaint (see Mutual Mar. Off., Inc. v Joy Constr. Corp., 39 AD3d 417, 419 [2007]). The record makes clear that defendant received the summons and complaint that the Secretary of State mailed to the address on file; the signature of the corporation's president appears on the postal return receipt (see Crespo v Kynda Cab Corp., 299 AD2d 295 [2002]).

As the record does not demonstrate that defendant received notice of the inquest, defendant must be given "a full opportunity to cross-examine witnesses, give testimony and offer [*2]proof in mitigation of damages" (Ruzal v Mohammad, 283 AD2d 318, 319 [2001] [internal quotation marks and citation omitted]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.