Opinion
June 1, 1992
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the order is affirmed, with costs.
The defendant did not receive actual notice of this action until after a default judgment had been entered against it. Service of process was effected upon the Secretary of State, to whom the defendant had failed to provide a current address.
Under CPLR 317, relief from a default judgment may be obtained upon a showing that the defendant did not receive timely notice of the pendency of the action, and has a meritorious defense (see, Simon Schuster v. Howe Plastics Chems. Co., 105 A.D.2d 604; Brac Constr. Corp. v. Di-Com Corp., 51 A.D.2d 740). Although the defendant's motion to vacate the default judgment was made pursuant to CPLR 5015 (a), under the circumstances of this case, it could have been treated as a motion made under CPLR 317 as well (see, Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141).
However, we agree with the Supreme Court's refusal to set aside the default judgment entered against the defendant. The affidavit and affirmation submitted in support of the defendant's motion fail to demonstrate a meritorious defense (see, International Publs. v. Matchabelli, 260 N.Y. 451, 453; Reich v. Cochran, 151 N.Y. 122; Mony Credit Corp. v. Colt Container Servs., 169 A.D.2d 760). Thompson, J.P., Bracken, Sullivan and Santucci, JJ., concur.