Zuppa By Zuppa v. Bison Drywall & Insulation Co.
| Citation | 462 N.Y.S.2d 83,93 A.D.2d 997 |
| Court | New York Supreme Court Appellate Division |
| Decision Date | 01 April 1983 |
| Parties | Michael Steven ZUPPA, infant By Susan ZUPPA, m/n/g and Susan Zuppa, Individually, Appellants, v. BISON DRYWALL & INSULATION COMPANY, INC., Respondent. |
Paul William Beltz, P.C. by Francis Letro, Buffalo, for appellant.
Canale, Madden & Burke, P.C. by John Canale, Buffalo, for respondent.
Before HANCOCK, J.P., and DOERR, DENMAN, BOOMER and SCHNEPP, JJ.
Special Term correctly vacated the default judgment. The summons and complaint were delivered to the Secretary of State who forwarded them to defendant, but the envelope was returned marked "addressee unknown." Since defendant never had actual notice of the pending lawsuit, it is entitled to have the default vacated, having made a showing of a meritorious defense (CPLR 317; National Bank of Northern N.Y. v. Grasso, 79 A.D.2d 871, 434 N.Y.S.2d 553). It is irrelevant that defendant failed to demonstrate a reasonable excuse for not filing a change of address with the Secretary of State, for while such a failure might preclude relief pursuant to CPLR 5015, it will not preclude relief pursuant to CPLR 317 (Meyer v. Chas. Fisher & Sons Dental Lab., 90 A.D.2d 889, 456 N.Y.S.2d 520; Cecelia v. Colonial Sand & Stone Co., 85 A.D.2d 56, 448 N.Y.S.2d 617).
Order unanimously affirmed without costs.
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