Wednesday, August 13, 2014

A motion to vacate based on defective service.

Practice point:  The Appellate Division determined that the Supreme Court erred in denying, without a hearing, that branch of the defendants' motion which was pursuant to CPLR 317 to vacate so much of the order as granted that branch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a default judgment against one of the defendants. That defendant demonstrated that it was not served with copies of the summons and complaint by personal delivery; did not personally receive notice of the summons in time to defend the action; and had a potentially meritorious defense.

Student note:  The Supreme Court determined that the defendant deliberately attempted to avoid notice of the summons, based upon the fact that the New York Secretary of State mailed a copy of the summons and complaint by certified mail, in time for it to defend the action, and that this mailing was returned as unclaimed. However, the Supreme Court should not have made this determination without conducting a hearing as to whether the defendant received notice of the dispatch or delivery of the certified mail from the Secretary of State.

Case:  Avila v. Distinctive Dev. Co., LLC, NY Slip Op05613 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Emergency vehicles and the reckless disregard standard of care.