Cecelia v. Colonial Sand & Stone Co., Inc.

• Citation: 448 N.Y.S.2d 617,85 A.D.2d 56
• Court: New York Supreme Court Appellate Division
• Decision Date: 18 February 1982
• Parties: Henrietta CECELIA, Individually and as Administratrix of the Estate of John J. Cecelia, Respondent, v. COLONIAL SAND & STONE COMPANY, INC., et al., Appellants. (And Another Related Action.)

Page 617

448 N.Y.S.2d 617

85 A.D.2d 56

Henrietta CECELIA, Individually and as Administratrix of the Estate of John J. Cecelia, Respondent, v. COLONIAL SAND & STONE COMPANY, INC., et al., Appellants (And Another Related Action.)

Supreme Court, Appellate Division Third Department.

Feb. 18, 1982.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Jonathan Sinnreich, New York City, of counsel), for Colonial Sand & Stone Company, Inc. and another, appellants.

Richter & Werbalowsky, Kingston (Lawrence R. Shelton, Kingston, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, MIKOLL, YESAWICH and LEVINE, JJ.

SWEENEY, Justice.

The underlying action is one for wrongful death. The summons and complaint were served on June 12, 1980 on the Secretary of State, who attempted to serve defendants Colonial Sand & Stone Company, Inc. (hereinafter Colonial) and Strelene Realty Corp. (hereinafter Strelene) by mailing copies by certified mail. The copies were returned, undelivered, the reason being posted as "Moved, not Forwardable". Defendants Colonial and Strelene failed to timely answer, but upon receiving actual notice of the action on November 12, 1980, when a notice of cross motion was served upon them, they immediately contacted plaintiff's attorney. These defendants thereafter served an answer on December 18, 1980, which answer was rejected by plaintiff as untimely.

Plaintiff subsequently moved for a default judgment and Colonial and Strelene moved to compel plaintiff to accept the answer. The motions were consolidated. Special Term granted plaintiff's motion for a default judgment and denied defendants' motion on the ground that defendants had offered no reasonable excuse for the default. Although Special Term found that defendants Colonial and Strelene had demonstrated a meritorious defense and that they had acted promptly once actual notice was received, the court felt constrained by this court's decision in Vogel v. Asgrow Mandeville Co., 74 A.D.2d 940, 426 N.Y.S.2d 137, app. dsmd. 50 N.Y.2d 894, 430 N.Y.S.2d 269, 408 N.E.2d 677 to also require defendants to show a reasonable excuse for their failure to file a change of address with the Secretary of State. Defendants then moved to renew their prior motion, alleging as an excuse for the default that they had engaged the U. S. Corporation Company to ensure that all correspondence, accounts, records and filings reflected the change of address. It was also stated that they had received correspondence including service of a summons from the Secretary of State at the new address and, therefore, there was no reason to doubt that the change of address had been filed. This motion was also denied and defendants Colonial and Strelene now appeal from both orders.

We are of the opinion that the initial order granting plaintiff's motion for a default judgment must be reversed. Pursuant to CPLR 317, a person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318 can be relieved of a default upon a finding of the court that he did not personally receive notice of the summons in time to defend and that he has a meritorious defense. The Secretary of State is not an agent under CPLR 318 and, thus, the relief sought by defendants Colonial and Strelene was within the scope of CPLR 317 (Wakerman Leather Co. v. Foster Sportswear Co., 27 A.D.2d 767, 277 N.Y.S.2d 56). There is no dispute in the present case that defendants Colonial and Strelene failed to personally receive notice of the summons in time to defend and Special Term properly found that they had demonstrated a meritorious defense. Consequently, defendants should have been allowed to open the default pursuant to CPLR 317.

Special...