Opinion
June 29, 1998
Appeal from the Supreme Court, Nassau County (Lockman, J.).
Ordered that the appeal from the order dated June 10, 1997, is dismissed, as that order was superseded by the order made upon reargument; and it is further,
Ordered that the order dated October 22, 1997, is reversed insofar as appealed from, upon reargument the defendants' motion to vacate their default and for permission to serve an answer is granted, the order dated June 10, 1997, is vacated, the proposed answer annexed to the defendants' moving papers is deemed timely served; and it is further,
Ordered that the appellants are awarded one bill of costs.
The plaintiffs claim to have effected service of process upon the corporate defendant pursuant to Business Corporation Law § 306 Bus. Corp., and upon the individual defendant pursuant to "sections 252/254" of the Vehicle and Traffic Law. However, the record contains no affidavits of service. Both the corporate defendant and the individual defendant made a sufficient showing that they did not receive a copy of the summons or complaint in time to defend the action. Further, their submissions included an accident report which contains an admission by the plaintiffs, and that document constitutes an appropriate affidavit of merit ( see, e.g., Matter of State Farm Mitt. Auto. Ins. Co. v. Bermudez, 111 A.D.2d 858; Penn v. Kirsh, 40 A.D.2d 814; Flynn v. Manhattan Bronx Surface Tr. Operating Auth., 94 A.D.2d 617, affd 61 N.Y.2d 769). Under the circumstances, in the proper exercise of discretion the Supreme Court should have permitted The defendants to appear and defend the action ( see, CPLR 317, 5015 N.Y.C.P.L.R. [a] [1]; Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138; Larman v. Russell, 240 A.D.2d 473; Mann-Tell Realty Corp. v. Cappadora Realty Corp., 184 A.D.2d 497; see also, CPLR 321A [g] [4]; cf., Santiago v. Sansue Realty Corp., 243 A.D.2d 622).
Mangano, P.J., Bracken, Krausman and McGinity, JJ., concur.