Grobman v Etoile 660 Madison LLC

Grobman v Etoile 660 Madison LLC 2015 NY Slip Op 02222 Decided on March 19, 2015 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 March 19, 2015
Mazzarelli, J.P., DeGrasse, Richter, Feinman, JJ.
14578N 150301/13

[*1] Rose Grobman, Plaintiff-Appellant,

v

Etoile 660 Madison LLC, et al, Defendants, First Quality Maintenance II, LLC, etc., Defendant-Respondent. [And a Third-Party Action]

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Gallo Vitucci & Klar LLP, New York (Kimberly A. Ricciardi of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered November 22, 2013, which granted defendant First Quality Maintenance II, LLC's (FQM) motion to vacate the default judgment against it, extend its time to answer, and deem its proposed answer served upon timely service of a copy of the order with notice of entry, unanimously affirmed, without costs.

FQM failed to demonstrate a reasonable excuse for its default, as required by CPLR 5015, since it did not offer an affidavit based on personal knowledge as to whether or not its registered agent had received the summons and complaint at the agent's designated mailing address for service of process. However, FQM's argument that it lacked personal notice of this action until it received a copy of the third-party complaint is substantiated by affidavits. Moreover, the argument was made before the motion court (and not refuted). Thus, FQM's reliance on CPLR 317 in support of the vacatur of its default, though raised for the first time on appeal, does not prejudice plaintiff, and in addition to showing that it did not receive notice of the summons in time to defend, FQM demonstrated a meritorious defense, i.e., the statute of limitations, which is apparent from the face of the record (see e.g. Augustin v Augustin, 79 AD3d 651 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 19, 2015

CLERK