Martorel v. Tower Gardens, Inc.

Jun 22, 2010
Versions:74 A.D.3d 651
903 N.Y.S.2d 397

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 2, 2009, which denied defendant‘s motion to vacate a default judgment, unanimously affirmed, without costs. Order, same court and Justice, entered August 6, 2009, which, insofar as appealed from as limited by the briefs, reinstated a previously vacated default judgment and award of damages, unanimously modified, on the law, to vacate the damages award and remand for a further inquest on damages, and otherwise affirmed, without costs.

While defendant demonstrated a potentially meritorious defense to plaintiff‘s action, it failed to show a reasonable excuse for its failure to answer the complaint (see Mutual Mar. Off., Inc. v Joy Constr. Corp., 39 AD3d 417, 419 [2007]). The record makes clear that defendant received the summons and complaint that the Secretary of State mailed to the address on file; the signature of the corporation‘s president appears on the postal return receipt (see Crespo v Kynda Cab Corp., 299 AD2d 295 [2002]).

As the record does not demonstrate that defendant received notice of the inquest, defendant must be given “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages” (Ruzal v Mohammad, 283 AD2d 318, 319 [2001] [internal quotation marks and citation omitted]). Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.