Opinion
2008-2195 N C.
Decided March 8, 2010.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 15, 2008. The order granted defendant's motion for summary judgment dismissing the complaint.
PRESENT: NICOLAI, P.J., TANENBAUM and MOLIA, JJ.
ORDERED that the order is affirmed without costs.
In this action against a corporate defendant to recover damages for breach of contract and against the individual defendant, Sun O. Lee, on an alleged guaranty of the corporate defendant's obligations, plaintiff appeals from an order of the District Court which, upon a motion by defendant Sun O. Lee for leave to reargue her prior motion, treated the motion as also seeking leave to renew, granted such leave, and, on renewal, vacated a default judgment insofar as it had been entered against Lee. Upon a review of the record, we find that the District Court did not improvidently exercise its discretion in construing the motion as one to renew and reargue rather than as one for reargument alone ( see Mejia v Nanni, 307 AD2d 870, 871).
Lee premised her motion on the "new fact," not offered on her original motion to vacate, of the alleged absence of a personal guaranty. Although this "new fact" must have been known to Lee when she made her original motion, the District Court noted that Lee had previously appeared pro se, and found that her failure as a pro se litigant to appreciate the procedural requirements of a motion to vacate a default judgment constituted a reasonable justification for her failure to present the alleged absence of a personal guaranty on her original motion. The requirement, on a motion to renew, that a reasonable justification be provided for the failure to present facts previously known to the movant, is a flexible one ( see e.g. Mattis v Keen, Zhao, 54 AD3d 610, 611-612; Vita v Alstom Signaling, 308 AD2d 582), and we find that the District Court did not improvidently exercise its discretion in granting Lee's motion for leave to renew her motion to vacate the default judgment.
By denying receipt of the summons and complaint, or knowledge of the action, until after a default judgment had been entered against her and restraints had been placed against her personal bank account, Lee placed in issue the question of whether jurisdiction had properly been obtained over her by service of process. The affidavit of service of plaintiff's process server, which stated that he left a copy of the summons and complaint with "Mr. Lee — Fam. Mem." at a specific address and mailed it to Lee at the same address, without specifically describing the address where the summons and complaint was left as Lee's actual place of business, dwelling place or usual place of abode, and without specifying whether the address to which the summons and complaint was mailed was Lee's last known residence or her actual place of business, was impermissibly vague ( see CPLR 308) and failed conclusively to establish that jurisdiction had been obtained over Lee. In these circumstances, we find that the District Court did not improvidently exercise its discretion in granting Lee's motion to vacate the default judgment insofar as it had been entered against her.
In view of the foregoing, the order of the District Court is affirmed.
Nicolai, P.J., Tanenbaum and Molia, JJ., concur.