Opinion
December 23, 1980
Appeal from the Jefferson Supreme Court.
Present — Dillon, P.J., Cardamone, Schnepp, Doerr and Witmer, JJ.
Order unanimously reversed, with costs, and matter remitted to Supreme Court, Jefferson County, for further proceedings, in accordance with the following memorandum: Defendant, the sole owner of Aquila's Pizza, Inc., a domestic corporation, opened a corporate checking account with plaintiff bank. In this action plaintiff seeks restitution for damages arising from its payment of a check issued by Aquila's Pizza, Inc. Following service of a summons and complaint by affixing a copy to the door of defendant's home and mailing (CPLR 308, subd 4) defendant did not appear and a default judgment was entered on November 14, 1977. While Special Term may have correctly ruled that defendant failed to make a requisite showing on its motion to set aside and vacate the default judgment pursuant to CPLR 5015, it erroneously failed to allow a defense to the action pursuant to CPLR 317. Defendant denied receipt of the summons and compaint or any knowledge of the action until after the issuance of a property execution subsequent to the entry of the default judgment. He made timely application under CPLR 317 and submitted facts showing a meritorious defense. Opening a default judgment is authorized under CPLR 317 "upon a finding of the court that [defendant] did not personally receive notice of the summons in time to defend and has a meritorious defense" (Marine Midland Bank v. Tooker, 78 A.D.2d 755). Personal delivery means "in-hand delivery" and a default judgment based upon any other form of service of the summons is subject to the ameliorative provisions of CPLR 317 (1 Weinstein-Korn-Miller, N Y Civ Prac, pars 317.01, 317.02). Although requested, Special Term erroneously failed to treat defendant's application as a CPLR 317 motion and to direct a trial of the issue of fact as to whether defendant personally received notice of the summons in time to defend (CPLR 2218). The case is remitted for that purpose.