Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Callahan, J.P., Boomer, Pine, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly exercised its discretion in denying defendant Sullivan's application to vacate a default judgment and for leave to interpose an answer. A person seeking relief pursuant to CPLR 317 must demonstrate that he did not personally receive notice of the summons in time to defend and that he has a meritorious defense (see, Marine Midland Bank v Tooker, 78 A.D.2d 755). The record indicates that the summons and complaint were served by personal delivery to the manager of defendant's establishment and that a copy was mailed to defendant's last known residence. Substituted service was complete when proof of service was filed in the County Clerk's office on July 24, 1985 (see, CPLR 308). Two days later, defendant's insurance agent forwarded a copy of the summons and complaint to defendant's insurance carrier. Under the circumstances, the record unequivocally shows that defendant personally received notice of the summons in time to defend. Moreover, defendant failed to demonstrate factually that he had a meritorious defense.