Opinion
2014-04-16
SDK PROPERTY ONE, LLC, appellant, v. QPI–XXXII, LLC, respondent.
Goldberg Weprin Finkel Goldstein LLP, New York, N.Y. (Matthew Hearle of counsel), for appellant. Winston & Strawn LLP, New York, N.Y. (Christopher C. Costello, Luke A. Connelly, and Zachary L. Spencer of counsel), for respondent.
Goldberg Weprin Finkel Goldstein LLP, New York, N.Y. (Matthew Hearle of counsel), for appellant. Winston & Strawn LLP, New York, N.Y. (Christopher C. Costello, Luke A. Connelly, and Zachary L. Spencer of counsel), for respondent.
In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered November 14, 2012, which denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon the defendant's failure to appear or answer the complaint.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant. In support of the motion, the plaintiff submitted proof of service of the summons and the complaint, the facts constituting the claim, and the defendant's default ( see CPLR 3215[f]; Diederich v. Wetzel, 112 A.D.3d 883, 979 N.Y.S.2d 605;King v. King, 99 A.D.3d 672, 951 N.Y.S.2d 565). However, in opposition to the plaintiff's motion, the defendant, which was not served with the summons and complaint by personal delivery, demonstrated that it did not personally receive notice of the summons in time to defend and has a potentially meritorious defense ( seeCPLR 317; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116;Brickhouse Masonry, LLC v. Windward Bldrs., Inc., 101 A.D.3d 919, 920, 956 N.Y.S.2d 175;Maron v. Crystal Bay Imports, Ltd., 99 A.D.3d 867, 868, 952 N.Y.S.2d 602).
The parties' remaining contentions are without merit or need not be reached in light of our determination. RIVERA, J.P., LOTT, MILLER and HINDS–RADIX, JJ., concur.