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Vento v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Feb 17, 1998
247 A.D.2d 535 (N.Y. App. Div. 1998)

Opinion

February 17, 1998

Appeal from the Supreme Court, Richmond County (Mastro, J.).


Ordered that the order is affirmed, with costs.

Initially we note that even if the opposition papers and cross motion were untimely served, the Supreme Court providently exercised its discretion in overlooking the late service inasmuch as the plaintiff was not prejudiced thereby ( see, Adler v. Gordon, 243 A.D.2d 365; Pallette Stone Corp. v. Guyer Bldrs., 194 A.D.2d 1019, 1020; Glasz v. Glasz, 173 A.D.2d 937, 938; Whiteford v. Smith, 168 A.D.2d 885).

In any event, the appellant's submissions were insufficient to establish either that he did not receive the summons and complaint ( see, Manhattan Sav. Bank v. Kohen, 231 A.D.2d 499; Gross v. Fruchter, 230 A.D.2d 710), or that he possessed a meritorious defense to the action ( see, Barasch v. Micucci, 49 N.Y.2d 594, 599; Becker v. Babylon Tr., 90 A.D.2d 815). Under the circumstances, the Supreme Court properly granted the plaintiff's motion and denied the appellant leave to vacate his default ( see, CPLR 3215).

The issue of whether the process server's attempts to serve the appellant constituted "due diligence" justifying service under CPLR 308 (4) was not raised in the Supreme Court and, therefore, is not properly before us. Were we to reach the issue, however, we would conclude that the process server's efforts were sufficient to constitute "due diligence" ( see, Kelly v. Lewis, 220 A.D.2d 485; Lara v. 1010 E. Tremont Realty Corp., 205 A.D.2d 468; Hanover New England v. MacDougall, 202 A.D.2d 724; Rodriguez v. Khamis, 201 A.D.2d 715; Brunson v. Hill, 191 A.D.2d 334; Hochhauser v. Bungeroth, 179 A.D.2d 431).

Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.


Summaries of

Vento v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Feb 17, 1998
247 A.D.2d 535 (N.Y. App. Div. 1998)
Case details for

Vento v. City of New York

Case Details

Full title:RICHARD G. VENTO, JR., Respondent, v. CITY OF NEW YORK, Defendant, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 17, 1998

Citations

247 A.D.2d 535 (N.Y. App. Div. 1998)
668 N.Y.S.2d 473

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