Central Savannah River Area Resource Development Agency, Inc. v. White Eagle Intern., Inc.

• Decision Date: 15 April 1985
• Citation: 110 A.D.2d 742,488 N.Y.S.2d 201
• Parties: CENTRAL SAVANNAH RIVER AREA RESOURCE DEVELOPMENT AGENCY, INC., Respondent, v. WHITE EAGLE INTERNATIONAL, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 201

488 N.Y.S.2d 201

110 A.D.2d 742

CENTRAL SAVANNAH RIVER AREA RESOURCE DEVELOPMENT AGENCY INC., Respondent, v. WHITE EAGLE INTERNATIONAL, INC., Appellant, et al., Defendant.

Supreme Court, Appellate Division Second Department.

April 15, 1985.

Patterson, Belknap, Webb & Tyler, New York City and J.J. Serota, Hempstead (Esther Koslow, Heather D. Diddel, New York City, Dvora Wolff Rabino, Bronxville and David F. Dobbins, New York City, of counsel), for appellant (one brief filed).

Suozzi, English & Klein, P.C., Mineola (Lois Carter Schlissel, Mineola, of counsel), for respondent.

Before TITONE, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM DECISION.

In an action to recover the balance due on a promissory note from the defendants as sureties, defendant White Eagle International, Inc., appeals (1) as limited by its brief, from so much of an order of the Supreme Court, Nassau County, dated July 14, 1983, as, after a traverse hearing, granted that branch of plaintiff's motion which was for an order directing the entry of a default judgment against it, (2) from a further order of the same court, dated October 25, 1983, which denied its motion to vacate the default pursuant to CPLR 5015, and (3) from a judgment of the same court dated December 13, 1983 in the amount of $366,410.51, which was entered upon default.

Appeals from the orders dismissed (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).

Judgment affirmed.

The respondent is awarded one bill of costs.

Despite the provisions of CPLR 5511, an appeal lies from the default judgment dated December 13, 1983, but review is limited to matters which were the subject of contest before Special Term (Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99; James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741).

We find that plaintiff's process server acted reasonably, and with due diligence, under all the circumstances present here, and that the manner of service, objectively viewed, was calculated to, and did, give the corporate defendant fair notice of the commencement of this action (Fashion Page v. Zurich Ins. Co., 50 N.Y.2d 265, 428 N.Y.S.2d 890, 406 N.E.2d 747; CPLR 311[1]; see also Belofatto v. Marsen Realty Corp., 62 Misc.2d 922, 310 N.Y.S.2d 191). If the summons was served on the wrong person, the fault lies with the corporation and not with the process server who made the appropriate inquiries and did all that he should be expected to do to see that the...