Weinberger v. Wild Orchid Flowers Corp.

185 N.Y.S.3d 694 (Mem)

Leah WEINBERGER, appellant,

v.WILD ORCHID FLOWERS CORP., defendant,I.J. Empire, Inc., respondent.

2020–06888

Index No. 500224/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 12, 2023

April 12, 2023

Avrohom Becker (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant.

Harfenist Kraut & Perlstein, LLP, Lake Success, NY (Stephen J. Harfenist and Heather L. Smar of counsel), for respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated March 11, 2020. The order granted the motion of the defendant I.J. Empire, Inc., pursuant to CPLR 317 and 5015(a)(1) to vacate so much of a judgment of the same court dated September 10, 2019, as, upon an order of the same court dated May 7, 2019, inter alia, granting that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendant I.J. Empire, Inc., and after an inquest on the issue of damages, was in favor of the plaintiff and against the defendant I.J. Empire, Inc., in the principal sum of $200,000, and for leave to serve a late answer.

ORDERED that the order dated March 11, 2020, is affirmed, with costs.

On October 31, 2018, the plaintiff allegedly was injured when she tripped and fell on a broken and defective sidewalk abutting commercial premises owned by an out-of-possession landlord, the defendant I.J. Empire, Inc. (hereinafter Empire), located in Brooklyn (hereinafter the subject premises). The subject premises were leased to and occupied by another commercial business. By summons and complaint dated January 3, 2019, the plaintiff commenced this action to recover damages for personal injuries against Empire, among others. On January 16, 2019, the plaintiff served the summons and complaint on Empire via the Secretary of State, followed by a mailing to Empire's address for service filed with the Secretary of State, which was listed as the subject premises. Empire failed to appear or answer the complaint. In March 2019, the plaintiff moved, inter alia, for leave to enter a default judgment against Empire. In an order dated May 7, 2019, the Supreme Court granted the plaintiff's motion, without opposition, and directed an inquest on the issue of damages. On July 23, 2019, Empire failed to appear at the inquest. A judgment dated September 10, 2019, was entered, inter alia, in favor of the plaintiff and against Empire in the principal sum of $200,000.

In November 2019, Empire moved pursuant to CPLR 317 and 5015(a)(1) to vacate so much of the judgment as was in favor of the plaintiff and against it, and for leave to serve a late answer. In an order dated March 11, 2020, the Supreme Court granted Empire's motion. The plaintiff appeals.

"To vacate a default in answering or appearing pursuant to CPLR 317, a defendant must demonstrate that it was served with a summons other than by personal delivery, that it did not receive actual notice of the summons in time to defend, and that it has a meritorious defense" ( Quinones v. Jonlek Assoc., LLC, 203 A.D.3d 763, 765, 160 N.Y.S.3d 649 [internal quotation marks omitted]).

Here, Empire demonstrated that it did not receive actual notice of the summons and complaint in time to defend itself in this action (see id. at 765, 160 N.Y.S.3d...