Opinion
July 11, 1986
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.
Order unanimously reversed, on the law, without costs, and motion granted, in accordance with the following memorandum: Defendant never received actual notice of the action because the summons and complaint served upon the Secretary of State were forwarded to defendant's prior business address and returned by postal officials. Since defendant demonstrated a meritorious defense, the court abused its discretion by denying the motion to vacate the default judgment made pursuant to CPLR 317 (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 N.Y.2d 138; Zuppa v Bison Drywall Insulation Co., 93 A.D.2d 997).
Moreover, the judgment entered by the clerk upon an unverified complaint and without the affidavit of a party was a nullity and should have been vacated (Natemeier v Heim, 81 A.D.2d 1008).
Defendant is directed to serve an answer within 20 days of receipt of the order herein.