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Barillari v. 511 Main Street Corp.

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 9, 1995
216 A.D.2d 859 (N.Y. App. Div. 1995)

Opinion

June 9, 1995

Appeal from the Supreme Court, Erie County, Joslin, J.

Present — Denman, P.J., Green, Wesley, Doerr and Balio, JJ.


Order unanimously reversed on the law without costs and cross motion granted. Memorandum: Supreme Court should have granted the cross motion of 511 Main Street Corp. (defendant) for an order extending the time to serve the proposed answer with counterclaims. Plaintiffs commenced this foreclosure action by serving the Secretary of State pursuant to Business Corporation Law § 306. The Secretary of State mailed a copy of the summons and complaint to the address of defendant's former attorneys, who had been designated as defendant's agent for the service of process. That address had not been a valid address for some time, and the mailing was returned to the Secretary of State with the notation "address not known." Defendant established that it was unaware of this action until it received the statutory notice required by CPLR 3215 (g) (4), that its failure to advise the Secretary of State of its current address was not deliberate, and that it promptly served an answer upon plaintiffs and moved for an order extending the time to answer. Those circumstances demonstrate a reasonable excuse for the default in answering (see, Sackman Mtge. Corp. v. 111 W. 95th St. Realty Corp., 152 A.D.2d 463, 464; cf., Tonawanda Tank Transp. Serv. v. Envirosure Mgt. Corp., 179 A.D.2d 1014; Zuppa v. Bison Drywall Insulation Co., 93 A.D.2d 997). Further, defendant demonstrated the existence of a meritorious defense.


Summaries of

Barillari v. 511 Main Street Corp.

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 9, 1995
216 A.D.2d 859 (N.Y. App. Div. 1995)
Case details for

Barillari v. 511 Main Street Corp.

Case Details

Full title:JOSEPH BARILLARI et al., Respondents, v. 511 MAIN STREET CORP., Appellant…

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

Date published: Jun 9, 1995

Citations

216 A.D.2d 859 (N.Y. App. Div. 1995)
629 N.Y.S.2d 365