Opinion
599N 103629/11.
03-24-2016
Shirley PARKER, Plaintiff–Appellant, v. BONITAS YOUTH SERVICES, INC., Defendant–Respondent.
Law Office of Certain & Zilberg, PLLC, New York (Michael Zilberg of counsel), for appellant. Kelley Drye & Warren LLP, New York (Sean R. Flanagan of counsel), for respondent.
Law Office of Certain & Zilberg, PLLC, New York (Michael Zilberg of counsel), for appellant.
Kelley Drye & Warren LLP, New York (Sean R. Flanagan of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Doris Ling–Cohan, J.), entered December 2, 2014, which granted defendant's motion pursuant to CPLR 317 to vacate a default judgment entered against it, unanimously affirmed, without costs.
Defendant established that “[it] did not personally receive 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 ).
Defendant established that it had a meritorious defense to the action by submitting an affidavit by its president and founder outlining in detail the routine safety practices defendant used when operating a sump pump and hose to remove flood water from its basement—thereby doing more than merely “generally vouching for the well-maintained condition of the premises” (Zapater v. 2540 Assoc., 250 A.D.2d 508, 508, 672 N.Y.S.2d 873 1st Dept.1998; see Peacock v. Kalikow, 239 A.D.2d 188, 190, 658 N.Y.S.2d 7 1st Dept.1997 ).
TOM, J.P., FRIEDMAN, SAXE, RICHTER, JJ., concur.