Opinion
May 20, 1971
Appeal from the Onondaga Special Term.
Present — Marsh, J.P., Witmer, Gabrielli, Moule and Cardamone, JJ.
Order unanimously reversed, with costs to plaintiffs, and motion denied. Memorandum: As a result of a fall on its premises on November 3, 1966, the plaintiff wife (respondent) instituted an action against the defendant-appellant, Loblaw's Inc., for her personal injuries and her husband (plaintiff-respondent) commenced an action for his loss of services and medical expenses. The defendant upon being served with a summons and complaint in April, 1969 turned them over to an independent adjuster, Albert F. Stager, Inc., who asked for and received from plaintiffs' attorney an indefinite extension of time to serve an answer. Loblaws later retained a Syracuse attorney to investigate this claim. Plaintiffs concede that this attorney was engaged at that time solely for the purpose of investigation and not as an attorney. In October and November, 1969 plaintiffs' attorney attempted to terminate the indefinite extension of time previously granted by advising the investigating attorney that if there was no answer served a default judgment would be taken. Receiving no response plaintiffs, upon motion and without notice to the defendant, moved for default judgments. An inquest held on March 12, 1970, also without notice to the defendant, resulted in default judgments in favor of the plaintiffs and against the defendant totaling $40,000. CPLR 2103 (subd. [c]) provides that if a party has not appeared by an attorney service shall be upon the party himself. The letter which plaintiffs' attorney directed to the investigating attorney terminating the extension was not in compliance with the requirement of the statute which provides that where a party has not appeared by an attorney service shall be made by mailing to the address designated by him for that purpose, or, if none is designated, to his last known address CPLR 2103 (subd. [b], par. 2). Defendant had turned the summons and complaint over to the independent adjuster (Stager, Inc.) to whom plaintiffs' attorney granted the extension in the first instance and whom defendant concedes would properly be an addressee designated for service of papers. Nothing indicates, however, that defendant ever designated the investigating attorney as an addressee for service of papers. Thus, the letter attempting to terminate the extension of time to answer, sent to an improper, undesignated address, was ineffective to accomplish that purpose. The legislative purpose of CPLR 2103 (subds. [b], [c]) is to insure that a party in a pending action is afforded a fair opportunity to be notified so that he may protect his interests. The methods of service enumerated represent a legislative determination as to the kind of service of papers which is reasonably sufficient to assure that the party served will actually receive notice CPLR 2103 (subd. [b], pars. 1, 2, 3, 4). Service which is not made in accordance with the stated requirements of the statute is ineffectual ( Kalman v. Welsh, 32 A.D.2d 1044; Anthony v. Schofield, 265 App. Div. 423). Thus, with an extension still in existence, there was no default on defendant's part. It was an improvident exercise of discretion to refuse to vacate the defaults even assuming notice was received by defendant. The default under these circumstances could not be termed willful, but merely inadvertent. Loblaws had furnished evidentiary proof establishing that it had a meritorious defense and justifiable excuse for its less than three-month delay in serving an answer from the November 24, 1969 deadline set by plaintiffs ( Inserra v. Porto, 33 A.D.2d 1092). It moved promptly to vacate the judgments after becoming aware that they had been entered. Finally, the statute empowers the court which rendered the judgment or order to relieve a party from it upon such terms as may be just CPLR 5015 (subd. [a]). The court also possesses an inherent power not limited by statute to relieve a party from a judgment entered on a default (9 Carmody-Wait 2d, New York Practice, § 63:186). Courts have control over their own proceedings, and in its exercise may open their own judgments for sufficient reason and in the furtherance of justice ( Ladd v. Stevenson, 112 N.Y. 325). An opportunity to defend on the merits is in the interest of justice and is therefore favored ( Ballard v. Billings Spencer Co., 36 A.D.2d 71, 75-76; Matter of Mento, 33 A.D.2d 650).