CPLR R. 5015
Tadco Constr. Corp. v Allstate Ins. Co., 2010 NY Slip Op 04362 (App. Div., 2nd, 2010)
The plaintiff moved for leave to enter a default judgment upon the
defendant's failure to answer or appear and the defendant thereafter
cross-moved to vacate its default on the ground that it had not been
properly served with the Summons with Notice. Although the Supreme Court
determined, after a hearing, that the defendant had been properly
served pursuant to CPLR 308(2), it vacated the defendant's default and
granted the defendant leave to serve an answer.
On appeal, the plaintiff contends that the Supreme Court erred in
vacating the defendant's default. In addition, the defendant seeks to
challenge by way of cross-appeal the Supreme Court's determination that
it was properly served with process. Although the defendant's
cross-appeal must be dismissed on the ground that it is not aggrieved by
the order vacating its default, the contentions raised by the defendant
can be considered as alternative grounds for affirmance (see
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
545-546; Matter of Allstate Ins. Co. v Leach, 15 AD3d 649).
In seeking to vacate its
default, the defendant was required to demonstrate a reasonable excuse
for the default and a potentially meritorious defense (see Sime v
Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc. v L & L
N.Y. Food Corp., 18 AD3d 851; Fekete v Camp Skwere, 16 AD3d
544). Contrary to the defendant's contentions, the evidence adduced at
the hearing fully supports the Supreme Court's determination that it was
properly served with process pursuant to CPLR 308(2) (see Fashion
Page v Zurich Ins. Co., 50 NY2d 265, 271-272; Aguilera v Pistilli
Constr. & Dev. Corp., 63 AD3d 765; Eastman Kodak Co. v
Miller & Miller Consulting Actuaries, 195 AD2d 591).
Since the defendant offered no other excuse for its default, the
Supreme Court improvidently exercised its discretion in vacating the
default (see Pezolano v Incorporated City of Glen Cove, 71 AD3d
970; Sime v Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc.
v L & L N.Y. Food Corp., 18 AD3d at 851). Accordingly, the
Supreme Court should have denied the defendant's cross motion and
granted the plaintiff's motion for leave to enter a default judgment.
This case inspired me to add a new tag, "It's kind of a big deal."