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Gardner v. Another Phyllis's, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Jun 1, 1995
216 A.D.2d 620 (N.Y. App. Div. 1995)

Opinion

June 1, 1995

Appeal from the Supreme Court, Saratoga County (Keniry, J.).


In this personal injury action, plaintiff served process upon defendant Another Phyllis's, Inc. (hereinafter defendant) via the Secretary of State. Defendant subsequently moved to vacate the default judgment obtained by plaintiff on the basis that it did not receive actual notice of the pending action. Plaintiff now contends that the default judgment should not have been vacated because defendant failed to show a reasonable excuse for its default. However, insofar as Supreme Court considered defendant's motion under CPLR 317, which does not require a reasonable excuse, we find this argument to be without merit ( see, Executive Motor Car v. Allen, 211 A.D.2d 871). We further find that defendant adequately demonstrated a meritorious defense to the action. Accordingly, we see no reason to disturb Supreme Court's exercise of its discretion to vacate the default.

Mikoll, J.P., Crew III, White, Yesawich Jr. and Peters, JJ., concur.


Summaries of

Gardner v. Another Phyllis's, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Jun 1, 1995
216 A.D.2d 620 (N.Y. App. Div. 1995)
Case details for

Gardner v. Another Phyllis's, Inc.

Case Details

Full title:JAMES GARDNER, Appellant, v. ANOTHER PHYLLIS'S, INC., Respondent, et al.…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 1, 1995

Citations

216 A.D.2d 620 (N.Y. App. Div. 1995)
627 N.Y.S.2d 582

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