SDK Property One, LLC v. QPI-XXXII, LLC

Apr 16, 2014
Versions:116 A.D.3d 835
983 N.Y.S.2d 419

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered November 14, 2012, which denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon the defendant’s failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff’s motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendant. In support of the motion, the plaintiff submitted proof of service of the summons and the complaint, the facts constituting the claim, and the defendant’s default (see CPLR 3215 [f]; Diederich v Wetzel, 112 AD3d 883 [2013]; King v King, 99 AD3d 672 [2012]). However, in opposition to the plaintiff’s motion, the defendant, which was not served with the summons and complaint by personal delivery, demonstrated that it did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]; Brickhouse Masonry, LLC v Windward Bldrs., Inc., 101 AD3d 919, 920 [2012]; Maron v Crystal Bay Imports, Ltd., 99 AD3d 867, 868 [2012]).

The parties’ remaining contentions are without merit or need not be reached in light of our determination. Rivera, J.P., Lott, Miller and Hinds-Radix, JJ., concur.