Opinion
August 21, 1989
Appeal from the Supreme Court, Dutchess County (Benson, J.).
Ordered that the order is reversed, on the law and the facts, with costs, the motion is granted, and the default judgment is vacated.
We find that the motion to vacate the default judgment should have been granted. Regardless of the manner in which service was effected, the defendant demonstrated a reasonable excuse for any delay in appearing and a meritorious defense to the action (see, CPLR 317, 5015).
If service were made by personal delivery (see, CPLR 308), then the notice of appearance was only four days late. Under the circumstances, such a short period of delay should not preclude a defense on the merits especially as the plaintiff has not claimed any prejudice (see, Mulder v. Rockland Armor Metal Corp., 140 A.D.2d 315). Further, the discrepancies between the name on the summons and the proper name of the defendant were sufficient to qualify as a reasonable excuse for the delay.
If service were made by substituted service (see, CPLR 308), then the notice of appearance was timely served and no default occurred. Indeed, even if there had then been a failure on the part of the defendant to timely appear, it would only have been necessary to show that the proper party did not receive notice of the action in time to defend and that he had a meritorious defense (see, CPLR 317).
In any event, we find that a meritorious defense to the action was demonstrated. The lease contemplated that certain changes in the premises were necessary so that the premises could be used for the purposes intended, that is, as a restaurant and that such changes must comply with the relevant rules and regulations. It was alleged that it became impossible to make the changes through no fault of either party due to the inactivity of the local building department with respect to the defendant's applications.
Since the intended purpose of the lease may have become impossible to effectuate through no fault of the defendant tenant, he may have been entitled to terminate the lease (see, Elkar Realty Corp. v. Kamada, 6 A.D.2d 155, lv dismissed 5 N.Y.2d 844; Benderson Dev. Co. v. Commenco Corp., 44 A.D.2d 889, affd 37 N.Y.2d 728). Bracken, J.P., Kunzeman, Sullivan and Balletta, JJ., concur.