Caesar v Harlem USA Stores, Inc.

Caesar v Harlem USA Stores, Inc. 2017 NY Slip Op 03918 Decided on May 16, 2017 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 May 16, 2017
Friedman, J.P., Richter, Moskowitz, Gische, Kapnick, JJ.
4046N 157852/13

[*1] Frank Caesar, Plaintiff-Appellant,

v

Harlem USA Stores, Inc., Defendant-Respondent.

Friedman Sanchez, LLP, Brooklyn (Jeffrey Bloomfield of counsel), for appellant.

Donaldson & Chilliest, New York, (Anthony S. Chilliest of counsel), for respondent.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 18, 2016, which, to the extent appealed from as limited by the briefs, granted defendant's motion to vacate the default judgment against it on the condition that defendant answer or respond within 20 days, unanimously affirmed, without costs.

Plaintiff brought this action against defendant after allegedly slipping and falling down a staircase at a retail clothing store located at 2309 Frederick Douglas Boulevard, New York, New York. The motion court properly granted defendant's motion to vacate the default judgment against it.

Defendant submitted a reasonable excuse for its default (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]) via an affidavit from its president that shows that the wrong address was used for service of process.

Defendant also established a meritorious defense (see Eugene Di Lorenzo, Inc., 67 NY2d at 141; Stillwell Café, Inc. v 1680 Eastchester Realty Corp., 145 AD3d 645, 646 [1st Dept 2016]), as its president denied that it operated a retail clothing store at the address where plaintiff was injured. Moreover, the clothing stores operated by defendant have no staircases, as they are entirely located on the ground floor. Defendant further provided evidence demonstrating that another entity was operating at the address where plaintiff's accident occurred.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 16, 2017

CLERK