Opinion
2012-12-19
BRICKHOUSE MASONRY, LLC, respondent, v. WINDWARD BUILDERS, INC., et al., defendants, North Haven Equities, LLC, appellant.
Weitzman Law Offices, LLC, New York, N.Y. (Raphael Weitzman of counsel), for appellant. Pinks, Arbeit & Nemeth, Hauppauge, N.Y. (Robert S. Arbeit of counsel), for respondent.
Weitzman Law Offices, LLC, New York, N.Y. (Raphael Weitzman of counsel), for appellant. Pinks, Arbeit & Nemeth, Hauppauge, N.Y. (Robert S. Arbeit of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendant North Haven Equities, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated September 7, 2011, as denied that branch of its motion which was to vacate a judgment entered March 21, 2011, upon its default in appearing or answering the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the motion of the defendant and North Haven Equities, LLC, which was to vacate the judgment entered March 21, 2011, is granted, and the judgment is vacated.
Although that branch of the appellant's motion which was to vacate the default judgment was made pursuant to CPLR 5015(a)(1), under the circumstances of this case, it may also be treated as a motion made pursuant to CPLR 317 ( see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr, Co., 67 N.Y.2d 138, 142, 501 N.Y.S.2d 8, 492 N.E.2d 116;Fleisher v. Kaba, 78 A.D.3d 1118, 1119, 912 N.Y.S.2d 604;Gonzalez v. City of New York, 65 A.D.3d 569, 570, 883 N.Y.S.2d 599;Hospital for Joint Diseases v. Lincoln Gen. Ins. Co., 55 A.D.3d 543, 544, 865 N.Y.S.2d 297). The appellant, which was served by delivery of process to the Secretary of State, demonstrated that it did not receive personal notice of the summons and complaint in time to defend ( see Calderon v. 163 Ocean Tenants Corp., 27 A.D.3d 410, 411, 811 N.Y.S.2d 428;Brockington v. Brookfield Dev. Corp., 308 A.D.2d 498, 764 N.Y.S.2d 469;Ford v. 536 E. 5th St. Equities, 304 A.D.2d 615, 757 N.Y.S.2d 473). Furthermore, there is no basis to conclude that the appellant deliberately attempted to avoid notice of the action, especially since the plaintiff was aware of the appellant's address ( see Tselikman v. Marvin Ct., Inc., 33 A.D.3d 908, 909, 824 N.Y.S.2d 298;Hon–Kuen Lo v. Gong Park Realty Corp., 16 A.D.3d 553, 792 N.Y.S.2d 145;Trujillo v. ATA Hous. Corp., 281 A.D.2d 538, 539, 722 N.Y.S.2d 62). Indeed, the plaintiff had mailed a notice of mechanic's lien to the appellant's address prior to the commencement of this action ( see Celifarco v. Command Bus Co., 107 A.D.2d 785, 786, 484 N.Y.S.2d 617). Moreover, the proof submitted by the appellant was sufficient to demonstrate a potentially meritorious defense ( seeCPLR 317; Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 518, 950 N.Y.S.2d 333, 973 N.E.2d 743;Sperry v. Crompton Corp., 8 N.Y.3d 204, 215, 831 N.Y.S.2d 760, 863 N.E.2d 1012;Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655–656, 389 N.Y.S.2d 327, 357 N.E.2d 983).
Accordingly, the Supreme Court should have granted that branch of the appellant's motion which was to vacate the judgment entered upon its default in appearing or answering the complaint.