Opinion
October 28, 1991
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the order entered February 1, 1990, is reversed insofar as appealed from, with costs to the appellant, payable by the plaintiff, and the matter remitted to Supreme Court, Suffolk County, for a hearing and new determination in accordance herewith.
Upon a review of the record, we find that an issue of fact exists as to whether Peter Belli, the person designated to receive notice of the action, actually received the notice that certified mail was waiting for him at the post office. Consequently, the Supreme Court should not have decided the motion without a hearing (see, Rifenburg v. Liffiton Homes, 107 A.D.2d 1015). Given the Secretary of State's certification of mailing, the appellant will be faced with overcoming a presumption of receipt (see, Matter of Rosa v. Board of Examiners, 143 A.D.2d 351; Vita v. Heller, 97 A.D.2d 464), and if it is unsuccessful in doing so its default should not be vacated (Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138; Rifenburg v Liffiton Homes, supra). The Supreme Court did not reach the issue of whether a meritorious defense had been demonstrated. We express no opinion thereon, and we leave that determination to the hearing court (see, Fidelity Deposit Co. v. Andersen Co., 60 N.Y.2d 693). Mangano, P.J., Thompson, Bracken and Copertino, JJ., concur.