Simon & Schuster, Inc. v. Howe Plastics & Chemicals Co., Inc.

• Decision Date: 08 November 1984
• Citation: 481 N.Y.S.2d 82,105 A.D.2d 604
• Court: New York Supreme Court — Appellate Division
• Parties: , 39 UCC Rep.Serv. 1266 SIMON & SCHUSTER, INC., Plaintiff-Respondent, v. HOWE PLASTICS & CHEMICALS CO., INC., Defendant-Appellant.

Page 82

481 N.Y.S.2d 82

105 A.D.2d 604, 39 UCC Rep.Serv. 1266

SIMON & SCHUSTER, INC., Plaintiff-Respondent, v. HOWE PLASTICS & CHEMICALS CO., INC., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 8, 1984.

L.J. Stanch, New York City, for plaintiff-respondent.

I.H. Zuckerman, New York City, for defendant-appellant.

Before MURPHY, P.J., and SANDLER, SILVERMAN, FEIN and LYNCH, JJ.

MEMORANDUM DECISION.

Order of Supreme Court, New York County, entered September 22, 1983, denying defendant's motion for renewal and reargument of an earlier motion seeking to vacate a default judgment, unanimously affirmed with costs. The appeal from the earlier order of the same court, entered July 8, 1983, is dismissed, without costs, that order having been superseded by the September 22 order.

Plaintiff, the publisher of the 1980 book entitled "Wind Power for Your Home", delivered a first installment of 100,000 copies to the defendant mail order distributor, at a cost of $108,000, with the balance of 101,840 copies to be shipped the following month. In dispute here is payment for the balance shipment at a cost of $109,987.20, which defendant now contends was untimely delivered, some two and one half months after originally promised. Plaintiff maintains this second shipment was timely, inasmuch as it followed within a month of defendant's late payment for the first shipment. Moreover, defendant did not object to the alleged untimeliness of the second shipment at the time of delivery.

Service of the summons was made on the Secretary of State, after access could not be obtained at defendant's corporate address. The Secretary of State forwarded the summons to the agent designated by defendant for such service. Defendant states that the agent was by then deceased and defendant, having failed to notify the Secretary of State of a newly designated agent, never received notice of the pendency of this law suit. Plaintiff obtained a default judgment in the amount of $128,722.84.

Defendant's motion to vacate the default was denied. Special Term ruled that in order to vacate its default, defendant must establish a reasonable excuse for its failure to answer and a meritorious defense. However, the law is clear that where alternative service is sought to be effected by service upon the Secretary of State and a default judgment ensues due to defendant's failure to apprise the Secretary of a currently valid agent for service, relief from the default may be obtained under CPLR 317 upon a showing that defendant did not receive timely...