Opinion
April 1, 1983
Appeal from the Supreme Court, Erie County, Mattina, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Boomer and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: Special Term correctly vacated the default judgment. The summons and complaint were delivered to the Secretary of State who forwarded them to defendant, but the envelope was returned marked "addressee unknown." Since defendant never had actual notice of the pending lawsuit, it is entitled to have the default vacated, having made a showing of a meritorious defense (CPLR 317; National Bank of Northern N.Y. v Grasso, 79 A.D.2d 871). It is irrelevant that defendant failed to demonstrate a reasonable excuse for not filing a change of address with the Secretary of State, for while such a failure might preclude relief pursuant to CPLR 5015, it will not preclude relief pursuant to CPLR 317 ( Meyer v Fisher Sons Dental Lab., 90 A.D.2d 889; Cecelia v Colonial Sand Stone Co., 85 A.D.2d 56).