Case Information

WONDER WORKS CONSTRUCTION CORP., Appellant, v RC DOLNER, LLC, Respondent.

Appellate Division of the Supreme Court of New York, First Department

2007

843 NYS2d 504

WONDER WORKS CONSTRUCTION CORP., Appellant, v RC DOLNER, LLC, Respondent. [843 NYS2d 504]—Order, Supreme Court, New York County (Debra A. James, J.), entered April 13, 2007, which granted defendant's motion to vacate a default judgment entered March 9, 2007, unanimously affirmed, without costs.

Defendant carried its burden of proving it had not received notice of the summons in time to defend the action and had a potentially meritorious defense (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]). Plaintiff did not serve the additional notice required by CPLR 3215 (g) (4) (i), and there is no evidence that defendant, who moved swiftly to vacate its default upon learning of the judgment, deliberately attempted to avoid notice of this action (see Grosso v MTO Assoc. Ltd. Partnership, 12 AD3d 402 [2004]). Concur—Lippman, P.J., Andrias, Williams, Buckley and Malone, JJ.