Schaller v. 120 Stuyvesant Place, LLC

Summary

The Appellate Division, Second Department affirmed the denial of the defendant's motion to vacate an order granting the plaintiff leave to enter a default judgment and for leave to serve a late answer. The court held that the defendant failed to demonstrate a potentially meritorious defense because its affidavit did not address actual or constructive notice of the alleged defective condition or a reasonable opportunity to correct it or provide a warning.

Holdings

1. A defendant served other than by personal delivery may be allowed to defend under CPLR 317 only upon a showing that it did not personally receive timely notice of the summons and that it has a meritorious defense; the defendant failed to demonstrate a potentially meritorious defense.
2. The defendant was not entitled to vacate the default or serve a late answer because it failed to demonstrate a potentially meritorious defense to the action.

Questions Presented

1. Whether the defendant established the statutory grounds under CPLR 317 to vacate the default and defend the action.
2. Whether the defendant demonstrated a reasonable excuse for its default and a potentially meritorious defense under CPLR 5015(a)(1).
3. Whether the defendant was entitled under CPLR 3012(d) to leave to serve a late answer.

Disposition

affirmed