Opinion
No. 570493/16.
12-13-2016
YORK SUSPENDED SCAFFOLDS INC., Plaintiff–Appellant v. GREAT AMERICAN CONTRACTING INC., Defendant–Respondent.
Order (Paul A. Goetz, J.), dated February 19, 2016, affirmed, with $10 costs.
Civil Court providently exercised its discretion in granting defendant's motion to vacate the default judgment pursuant to CPLR 317. Although defendant's failure to maintain a current address with the Secretary of State is not a reasonable excuse for default warranting relief under CPLR 5015(a)(1), defendant demonstrated grounds for relief pursuant to CPLR 317, since it was not personally served, did not receive actual notice in time to defend, and has a meritorious defense to this action arising from an oral agreement to rent scaffolding equipment (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141–142 [1986] ; Li Xian v. Tat Lee Supplies Co., Inc., 126 A.D.3d 424 [2015] ). The affidavit submitted by defendant in support of the motion was sufficient to show a meritorious defense (see Peacock v. Kalikow, 239 A.D.2d 188, 190 [1997] )—namely, that defendant was instructed by plaintiff not to disassemble and return the scaffolding because another entity, the project owner, agreed to rent the same equipment from plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur