Opinion
October 26, 1987
Appeal from the Supreme Court, Orange County (Patsalos, J.).
Ordered that the order is affirmed, with costs, and the defendant's time to interpose an answer is extended until 20 days after service upon it of a copy of this decision and order, with notice of entry.
The defendant moved pursuant to CPLR 317 within one year of the entry of a default judgment against it, seeking to vacate its default and for leave to serve an answer. The summons and complaint were not personally served on the defendant or upon an agent designated by CPLR 318. The Supreme Court did not abuse its discretion in granting the motion upon finding that the defendant "did not personally receive notice of the summons in time to defend and [that the defendant] has a meritorious defense".
Even though the fault for not having received notice of the summons delivered to the Secretary of State was the defendant's for not having updated its address on file, that failure was not shown to have been intentional and is not fatal to the defendant's motion.
There is no claim that the defendant received any other notice of the summons "in time to defend" which in this case would be 30 days from the initial service on the Secretary of State (see, CPLR 320 [a]).
Further, the defendant has shown a sufficient claim of merit to entitle it to a trial on the issues. Lawrence, J.P., Weinstein, Kooper and Sullivan, JJ., concur.