Eschen Prosthetic & Orthotic Labs., Inc. v Roth

[*1] Eschen Prosthetic & Orthotic Labs., Inc. v Roth 2010 NY Slip Op 51342(U) [28 Misc 3d 133(A)] Decided on July 29, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-1681 K C.

Eschen Prosthetic & Orthotic Laboratories, Inc., Appellant,

against

Abraham Roth, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered June 3, 2008. The order, insofar as appealed from, granted defendant's motion to vacate a default judgment.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action to recover the balance due for medical supplies provided to defendant and based upon an account stated, defendant failed to appear and answer the complaint. A default judgment was entered on August 13, 2007. Shortly thereafter, defendant moved to, among other things, vacate the default judgment pursuant to CPLR 317.

We find that, in support of his motion, defendant asserted a meritorious defense to the action and that he had not received personal notice of the summons in time to defend the action (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Franklin v 172 Audubon Corp., 32 AD3d 454 [2006]). Accordingly, the order, insofar as appealed from, granting defendant's motion to vacate the default judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010