Peacock v. Kalikow

• Decision Date: 13 May 1997
• Citation: Peacock v. Kalikow, 239 A.D.2d 188, 658 N.Y.S.2d 7 (N.Y. App. Div. 1997)
• Parties: Michael PEACOCK, Plaintiff-Appellant, v. Peter S. KALIKOW, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 7

658 N.Y.S.2d 7

239 A.D.2d 188

Michael PEACOCK, Plaintiff-Appellant, v. Peter S. KALIKOW, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

May 13, 1997.

Paul F. McAloon, for plaintiff-appellant.

Harvey L. Greenberg, for defendants-respondents.

Before MURPHY, P.J., and SULLIVAN, MILONAS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Paula Omansky, J.), entered on February 16, 1996, which granted defendant R & J Construction Corporation's motion to vacate the default judgment against it, unanimously reversed, on the law and the facts, without costs, and the default judgment reinstated. The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that he was injured while working at a construction site when "carelessly, recklessly and/or negligently" placed boards of sheetrock fell on him. He brought a personal injury action against numerous parties, including R & J Construction Corporation ("R & J"), one of the site contractors. The action against R & J was commenced by serving the Secretary of State with two copies of the summons and complaint. Plaintiff's counsel also mailed a copy of the summons and complaint to R & J, along with an affidavit of service on the Secretary of State. Defendant claims that none of these papers noted its correct business address and that it never received notice of the action. In any event, no answer was submitted, and in July 1994, a year after the action was commenced, the then-assigned IAS court granted plaintiff a default judgment against R & J.

R & J contends that the first notice it ever received concerning the action was notice of the default judgment in August 1994, whereupon it sent the papers to its insurance broker. According to R & J, the broker failed to forward the papers to the insurance carrier, and, therefore, nothing was done with respect to the matter.

Indeed, it was not until sixteen months later, in December 1995, that defendant moved to vacate the default judgment. In support of its motion, two affidavits were submitted by R & J's controller. These affidavits offered explanations for both periods of delay, i.e., the delay in defending the action and the delay in moving to vacate the default judgment. In both, the controller asserted that R & J had a meritorious defense to the action. The first affidavit stated that R & J was "unconnected with plaintiff" and that it had "no dealings with plaintiff nor did it owe or breach any obligation to plaintiff." The second stated that R & J "is by no means liable to plaintiff in the instant action, either for negligent or intentional acts. R & J has no connection whatsoever to plaintiff, owed no duty to plaintiff, and in fact, has no independent knowledge of plaintiff's claim." These were the sole allegations of a meritorious defense. The subsequently assigned IAS court concluded that this defense, which it termed "no dealing," was "flimsy but barely qualifies" and therefore granted defendant's motion to vacate the default judgment.

A party may move to vacate a default judgment against it under CPLR 317 or CPLR 5015. Even where the moving party cites only one statutory provision, the reviewing court may consider whether application of either statute would warrant the relief requested (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138, 142-143, 501 N.Y.S.2d 8, 492 N.E.2d 116). While it is unclear under which statute de...