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Lopez v. Trucking Stratford

Appellate Division of the Supreme Court of New York, First Department
Nov 12, 2002
299 A.D.2d 187 (N.Y. App. Div. 2002)

Summary

holding attorney's affirmation insufficient to establish meritorious defense

Summary of this case from Deboer v. Friedman

Opinion

2172N

November 12, 2002.

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about July 30, 2001, which, in an action for personal injuries allegedly sustained when plaintiff fell on defendant's premises, denied defendant's motion to vacate an order granting a default judgment against it on the issue of liability, unanimously affirmed, without costs.

DAVID A. KAPELMAN, for plaintiff-respondent.

EPHREM WERTENTEIL, for defendant-appellant.

Before: Nardelli, J.P., Mazzarelli, Saxe, Marlow, JJ.


Defendant's conclusory assertions, made in its attorney's affirmation, that there are obvious issues of fact relating to notice and comparative negligence, without any further specification whatsoever, fails to show a meritorious defense, and therefore defendant is not entitled to relief under either CPLR 317 or 5015 (see Peacock v. Kalikow, 239 A.D.2d 188, 189, 190; see also Public Serv. Mut. Ins. Co. v. Zucker, 225 A.D.2d 308, 309; Widgren v. 313 E. 9th Assocs., 295 A.D.2d 146, 742 N.Y.S.2d 837).

Plaintiff's affidavit of mailing of an additional summons and complaint to defendant's last known address, as required by CPLR 3215(g)(4)(I), does not indicate, as required by CPLR 3215(g)(4)(ii), that the additional service was accompanied by a notice to defendant that service had been made on the Secretary of State pursuant to Business Corporation Law § 306(b). This defect, however, does not warrant vacating the default judgment absent a showing of a meritorious defense (cf. Crespo v. A.D.A. Mgt., 292 A.D.2d 5, 10).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Lopez v. Trucking Stratford

Appellate Division of the Supreme Court of New York, First Department
Nov 12, 2002
299 A.D.2d 187 (N.Y. App. Div. 2002)

holding attorney's affirmation insufficient to establish meritorious defense

Summary of this case from Deboer v. Friedman
Case details for

Lopez v. Trucking Stratford

Case Details

Full title:HAROLD LOPEZ, PLAINTIFF-RESPONDENT, v. TRUCKING STRATFORD, INC.…

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

Date published: Nov 12, 2002

Citations

299 A.D.2d 187 (N.Y. App. Div. 2002)
749 N.Y.S.2d 524

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