Vento v. City of New York

Feb 17, 1998
Versions:247 A.D.2d 535
668 N.Y.S.2d 473
1998 N.Y. App. Div. LEXIS 1489

In an action to recover damages for personal injuries, the defendant John J. Dalton appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated January 17, 1997, which granted the plaintiffs motion for leave to enter a judgment on liability upon his default in answering or appearing and denied his cross motion, inter alia, to vacate his default.

Ordered that the order is affirmed, with costs.

Initially we note that even if the opposition papers and cross motion were untimely served, the Supreme Court providently exercised its discretion in overlooking the late service inasmuch as the plaintiff was not prejudiced thereby (see, Adler v Gordon, 243 AD2d 365; Pallette Stone Corp. v Guyer Bldrs., 194 AD2d 1019, 1020; Glasz v Glasz, 173 AD2d 937, 938; Whiteford v Smith, 168 AD2d 885).

In any event, the appellant’s submissions were insufficient to establish either that he did not receive the summons and complaint (see, Manhattan Sav. Bank v Kohen, 231 AD2d 499; Gross v Fruchter, 230 AD2d 710), or that he possessed a meritorious defense to the action (see, Barasch v Micucci, 49 NY2d 594, 599; Becker v Babylon Tr., 90 AD2d 815). Under the circumstances, the Supreme Court properly granted the plaintiffs motion and denied the appellant leave to vacate his default (see, CPLR 3215).

The issue of whether the process server’s attempts to serve the appellant constituted “due diligence” justifying service under CPLR 308 (4) was not raised in the Supreme Court and, therefore, is not properly before us. Were we to reach the issue, however, we would conclude that the process server’s efforts were sufficient to constitute “due diligence” (see, Kelly v Lewis, 220 AD2d 485; Lara v 1010 E. Tremont Realty Corp., 205 AD2d 468; Hanover New England v MacDougall, 202 AD2d 724; Rodriguez v Khamis, 201 AD2d 715; Brunson v Hill, 191 AD2d 334; Hochhauser v Bungeroth, 179 AD2d 431).

Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.