Practice point: The Appellate Division determined that the Supreme Court improvidently exercised its discretion in granting the
motion of the defendant South 4th Street Condos, LLC, to vacate, as against it, a default judgment. Pursuant to CPLR 317, a defendant is entitled to vacatur of a
default judgment if it is established that the defendant did not receive
personal notice of the summons in time to defend and has a potentially
meritorious defense. Here, South 4th established that it did not receive
personal notice of the summons in time to defend. However, while there was no evidence
that it deliberately attempted to avoid notice, it failed to show a potentially
meritorious defense to the plaintiffs' Labor Law § 240 cause of action.
Student note: The decision to set aside a default in answering is left to the
sound discretion of the Supreme Court, and its determination likely will not be disturbed if there is support in the record.
Case: Dias v. North True Constr. Mgt., LLC, NY Slip Op 03631 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Claims against an individual defendant as an employer, not as a corporate officer.
