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.
