Garret v Mitchell

[*1] Garret v Mitchell 2006 NY Slip Op 52316(U) [13 Misc 3d 144(A)] Decided on November 29, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 6, 2006; it will not be published in the printed Official Reports.

Decided on November 29, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2005-1237 N C.

ELISHA GARRET, Respondent,

against

CHERYLL MITCHELL, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Martin J. Massell, J.), entered May 24, 2005. The order denied defendant's motion to vacate a default judgment.

Order reversed without costs and defendant's motion to vacate the default judgment granted.

In this action for rent allegedly unpaid at the time of defendant's eviction, the evidence provided by defendant was sufficient to support a motion to vacate pursuant to CPLR 317, on the ground that defendant was not personally served and that notice of the action was not received in time to defend it (see Gardner v Another Phyllis's, 216 AD2d 620 [1995]; Executive Motor Car v Allen, 211 AD2d 871 [1995]). Defendant proffered sufficient evidence of payment to demonstrate the existence of a meritorious defense.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: November 29, 2006