Kaplan v. D'Agostino Supermarkets, Inc.

Dec 8, 1994
Versions:210 A.D.2d 79
619 N.Y.S.2d 277
1994 N.Y. App. Div. LEXIS 12459

—Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered April 12, 1994, which denied defendant’s motion to vacate a default judgment, unanimously affirmed, with costs.

The IAS Court did not abuse its discretion in denying vacatur of the default judgment against defendant pursuant to CPLR 5015 (a) (1) on the ground that defendant’s failure to keep a correct address on file with the Secretary of State for more than 10 years was "inexcusable” (see, Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143), or pursuant to CPLR 317 on the ground that defendant’s failure to personally receive notice of the summons was a result of deliberate attempt to avoid such notice (see, supra). As the IAS Court found, such avoidance Was inferable from defendant’s successful motion, made some three years prior to the commencement of this action, to dismiss another action because of the plaintiff’s failure therein to enter a default judgment within a year after defendant had been served through delivery of process to the Secretary of State, and defendant’s subsequent failure to advise the Secretary of State of its new address (see, Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d *80621, 622). We have considered defendant’s other arguments and find them to be without merit. Concur—Ellerin, J. P., Kupferman, Williams and Tom, JJ.