Price v Boston Rd. Dev. Corp.
2008 NY Slip Op 09001 [56 AD3d 336]
November 18, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 7, 2009

Francina A. Price, Appellant,
Boston Road Development Corp., Respondent.

[*1] Elliot Ifraimoff & Associates, P.C., Forest Hills (David E. Waterbury of counsel), for appellant.

Werner, Zaroff, Slotnick, Stern & Ashkenazy, LLP, Lynbrook (Howard J. Stern of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered June 6, 2007, which granted defendant's motion to vacate a default judgment, unanimously affirmed, without costs.

Defendant established the requisite lack of actual notice of the summons in time to defend and meritorious defense to the action (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Arabesque Recs. LLC v Capacity LLC, 45 AD3d 404 [2007]). Although there was evidence that the summons and complaint were served on the Secretary of State, defendant demonstrated by affidavits in support of its motion that it did not receive notice of the action until its former managing agent was personally served with plaintiff's motion for a default judgment. Further, the prompt action defendant took after receiving notice of plaintiff's motion suggests that it lacked actual notice of the summons and complaint. Defendant made a prima facie showing of a meritorious defense by submitting evidence that it had no notice of any alleged defective condition and that plaintiff admitted she was intoxicated at the time she fell (see Batra v Office Furniture Serv., 275 AD2d 229, 231 [2000]; Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [2008]).

With respect to defendant's failure to oppose plaintiff's motion, its insurance carrier's failure to act timely does not preclude defendant from vacating an unintentional default (see Price v Polisner, 172 AD2d 422 [1991]). [*2]

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Tom, J.P., Andrias, Friedman, Catterson and Acosta, JJ.