Opinion
2011-11-22
Joseph L. NEWMAN, as Chapter 7 Trustee for the Estate of Victoria Lazorik, etc., Plaintiff–Appellant,v.The OLD GLORY REAL ESTATE CORPORATION, Defendant–Respondent,Delidakis Construction Co. Inc., Defendant.
Michael A. Haskel, Mineola, for appellant.Quirk and Bakalor, P.C., New York (Richard H. Bakalor of counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about April 21, 2010 which, insofar as appealed from, granted defendant The Old Glory Real Estate Corporation's motion to vacate a default judgment, unanimously affirmed, without costs.
Defendant established that “[it] did not receive personal notice of the summons in time to defend and has a meritorious defense” (CPLR 317; see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). The record shows that process was served on the Secretary of State and sent to the wrong address. However, there is no evidence that defendant engaged in a deliberate attempt to avoid notice ( see id. at 143, 501 N.Y.S.2d 8, 492 N.E.2d 116; Raiola v. 1944 Holding, 1 A.D.3d 296, 767 N.Y.S.2d 595 [2003] ). The record shows prima facie that defendant was the decedent's employer when she was injured, which, if proven, would limit plaintiff's recovery to workers' compensation.
TOM, J.P., SAXE, SWEENY, RICHTER, MANZANET–DANIELS, JJ., concur.