Summary
granting summary judgment for claims asserted against defendant employers under Section 296 where defendants “acted appropriately when confronted with [plaintiff's] complaints of sexual and religious harassment” and there was “no evidence that the defendants encouraged, condoned, or approved the alleged conduct.”
Summary of this case from Romero v. City of N.Y.Opinion
2001-10721
Submitted March 22, 2002.
April 29, 2002.
In an action to recover on an insurance policy pursuant to Insurance Law § 3420, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated November 30, 2001, which granted the defendant's motion to vacate a judgment entered against it upon its default in answering and to dismiss the complaint.
Jose R. Mendez, P.C., Rego Park, N.Y., for appellant.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Roy W. Vasile and Patricia M. D'Antone of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was to vacate the judgment entered against it upon its default in answering. To obtain relief pursuant to CPLR 317, the defendant was required to establish that it did not personally receive notice of the summons in time to defend and that it has a meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr., 67 N.Y.2d 138). The plaintiff effected service upon the defendant in November 2000 by serving a copy of the summons and complaint upon the Superintendent of Insurance (see Insurance Law § 1212). The defendant established that it did not receive actual notice of the summons in time to defend (cf. Nicolosi v. Sleuth Sec. Sys., 247 A.D.2d 521).
Further, the Supreme Court properly dismissed the complaint, as the plaintiff failed to demonstrate compliance with the service requirement of Insurance Law § 3420.
ALTMAN, J.P., McGINITY, TOWNES and CRANE, JJ., concur.