Nahal v. C & S Bldg. Materials, Inc.
| Decision Date | 02 January 1986 |
| Parties | Henry J. NAHAL, et al., Appellants, v. C & S BUILDING MATERIALS, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
McClung, Peters, Simon & Arensberg (John W. Scott, of counsel), Albany, for appellants.
Alan R. Freedman, Albany, for respondent.
Before KANE, J.P., and CASEY, WEISS, YESAWICH and HARVEY, JJ.
Appeal from an order of the Supreme Court at Special Term (Cobb, J.), entered October 11, 1984 in Rensselaer County, which granted defendant's motion to vacate a default judgment entered against it.
In 1980, plaintiffs engaged a contractor to insulate their home with materials purchased from defendant. When it was discovered that the material had a lesser "R" value than purportedly represented by defendant, plaintiffs commenced the instant action for breach of warranty and fraud by service upon the Secretary of State pursuant to Business Corporation Law § 306. It is undisputed that the summons and complaint were returned to the Secretary of State as undelivered, apparently due to defendant's failure to maintain a current address on file. Plaintiffs ultimately obtained a default judgment against defendant in the amount of $13,460. Once notified, defendant promptly moved to vacate the default pursuant to either CPLR 317 and/or 5015. Special Term vacated the default but left the judgment intact as security pending a final disposition of the matter (see, e.g., Rubin v. Payne, 103 A.D.2d 946, 479 N.Y.S.2d 562). Plaintiffs have appealed.
There should be an affirmance. Since defendant did not personally receive notice of the action in time to defend, the issue distills to whether a meritorious defense was presented (see, Marquette Co. v. Norcem, Inc., App.Div., 494 N.Y.S.2d 511, 512; Epstein v. Abalene Pest Control Serv., 98 A.D.2d 832, 470 N.Y.S.2d 497). In his supporting affidavit, defendant's vice-president maintained that no contractual relationship existed between the parties and, in any event, the alleged misrepresentations as to the quality of the insulation material were not made by any of defendant's representatives. Despite plaintiffs' assertions that the affidavit was merely conclusory and without evidentiary support, we conclude that it sufficiently establishes a potential meritorious defense (see, R.M.R. Restaurant v. Bygaph Corp., App.Div., 493 N.Y.S.2d 667, 668). Plaintiffs failed to specify in either their complaint or supporting affidavits the details of the alleged...
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