Vento v. City of New York

• Decision Date: 17 February 1998
• Citation: 668 N.Y.S.2d 473,247 A.D.2d 535
• Parties: 1998 N.Y. Slip Op. 1590 Richard G. VENTO, Jr., Respondent, v. CITY OF NEW YORK, Defendant, John J. Dalton, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 473

668 N.Y.S.2d 473

1998 N.Y. Slip Op. 1590

Richard G. VENTO, Jr., Respondent, v. CITY OF NEW YORK, Defendant John J. Dalton, Appellant.

Supreme Court of New York, Appellate Division Second Department.

Feb. 17, 1998.

Armienti & Brooks, P.C., New York City (Adam M. Stengel and Charles T. Glaws, of counsel), for appellant.

Barry Siskin, New York City, for respondent.

In an action to recover damages for personal injuries, the defendant John J. Dalton appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated January 17, 1997, which granted the plaintiff's motion for leave to enter a judgment on liability upon his default in answering or appearing and denied his cross motion, inter alia, to vacate his default.

ORDERED that the order is affirmed, with costs.

Initially we note that even if the opposition papers and cross motion were untimely served, the Supreme Court providently exercised its discretion in overlooking the late service inasmuch as the plaintiff was not prejudiced thereby (see, Adler v. Gordon, --- A.D.2d ----, 664 N.Y.S.2d 546; Pallette Stone Corp. v. Guyer Bldrs., 194 A.D.2d 1019, 1020, 599 N.Y.S.2d 644; Glasz v. Glasz, 173 A.D.2d 937, 938, 569 N.Y.S.2d 801; Whiteford v. Smith, 168 A.D.2d 885, 564 N.Y.S.2d 806).

In any event, the appellant's submissions were insufficient to establish either that he did not receive the summons and complaint (see, Manhattan Sav. Bank v. Kohen, 231 A.D.2d 499, 647 N.Y.S.2d 256; Gross v. Fruchter, 230 A.D.2d 710, 646 N.Y.S.2d 53), or that he possessed a meritorious defense to the action (see, Barasch v. Micucci, 49 N.Y.2d 594, 599, 427 N.Y.S.2d 732, 404 N.E.2d 1275; Becker v. Babylon Tr., 90 A.D.2d 815, 456 N.Y.S.2d 24). Under the circumstances, the Supreme Court properly granted the plaintiff's motion and denied the appellant leave to vacate his default (see, CPLR 3215).

The issue of whether the process server's attempts to serve the appellant constituted "due diligence" justifying service under CPLR 308(4) was not raised in the Supreme Court and, therefore, is not properly before us. Were we to reach the issue, however, we would conclude that the process server's efforts were sufficient to constitute "due diligence" (see, Kelly v. Lewis, 220 A.D.2d 485, 632 N.Y.S.2d 186; Lara v. 1010 E. Tremont Realty Corp., 205 A.D.2d 468, 614 N.Y.S.2d 6; Hanover New England v. MacDougall, 202 A.D.2d 724, 608 N.Y.S.2d 561; Rodriguez v. Khamis, 201 A.D.2d 715, 608 N.Y.S.2d 486; Brunson...