Newman v Old Glory Real Estate Corp.

Newman v Old Glory Real Estate Corp. 2011 NY Slip Op 08477 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Tom, J.P., Saxe, Sweeny, Richter, Manzanet-Daniels, JJ.
6126N 101745/08

[*1]Joseph L. Newman, as Chapter 7 Trustee for the Estate of Victoria Lazorik, etc., Plaintiff-Appellant,

v

The Old Glory Real Estate Corporation, Defendant-Respondent, Delidakis Construction Co. Inc., Defendant.




Michael A. Haskel, Mineola, for appellant.
Quirk and Bakalor, P.C., New York (Richard H. Bakalor of
counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about April 21, 2010 which, insofar as appealed from, granted defendant The Old Glory Real Estate Corporation's motion to vacate a default judgment, unanimously affirmed, without costs.

Defendant established that "[it] did not receive personal notice of the summons in time to defend and has a meritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141—142 [1986]). The record shows that process was served on the Secretary of State and sent to the wrong address. However, there is no evidence that defendant engaged in a deliberate attempt to avoid notice (see id. at 143; Raiola v 1944 Holding, 1 AD3d 296 [2003]). The record shows prima facie that defendant was the decedent's employer when she was injured, which, if proven, would limit plaintiff's recovery to
workers' compensation.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK