Opinion
February 4, 1975
Order of Appellate Term, entered March 20, 1974, affirming order of Civil Court, Bronx County, entered May 4, 1973, granting defendants' motion to the extent of permitting service of answer, unanimously reversed, on the law and the facts, and the motion denied, without costs and without disbursements. This case had its origins in the year 1965, with the leasing of certain equipment to the defendant corporation, providing for payments, guaranteed by the individual defendants. The defendants, Wright, were allegedly served with a summons and complaint on April 23, 1966; and a default judgment was entered and served, with notice of entry on May 12, 1966. The defendant Mildred Wright, the respondent herein, was served with a subpoena in supplementary proceedings on May 27, 1966. Under the foregoing facts, the contentions of the respondents are insupportable. CPLR 5015 countenances relief of an excusable default if a motion for such relief is made within a year after service of a copy of the judgment. Herein, the motion for relief was not made until over 6 years had passed since the service on her of a subpoena folowing the entry of judgment. And even at the ensuing hearing, no specific finding was made that the original summons had not been served. If we accept the guidelines of CPLR 317, in no event may a motion for relief of judgment be made more than five years after knowledge of the entry of a judgment. (Cf. McKinney's Cons. Laws of N.Y., Book 7B, CPLR 5015, p. 577.) Herein, also, there is no denial of the existence of the lease, which is the subject of the complaint, nor of the personal guarantees of payment. Thus, the request for relief is also deficient due to the absence of an affidavit demonstrating a meritorious defense. ( Levine v. Fal-Bar Argentinian Corner Rest., 18 A.D.2d 611.) In sum, since the motion was untimely made, and since the movant failed to proffer a meritorious defense, it was an improvident exercise of discretion to permit service of an answer.
Concur — McGivern, P.J., Kupferman, Lupiano and Yesawich, JJ.