Parker v. Bonitas Youth Services, Inc. — 137 A.D.3d 644

Majority

p. 644

Shirley Parker, Appellant, v Bonitas Youth Services, Inc., Respondent.

[26 NYS3d 858]

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered December 2, 2014, which granted defendant’s motion pursuant to CPLR 317 to vacate a default judgment entered against it, unanimously affirmed, without costs.

Defendant established that “[it] did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 , 141-142 [1986]).

Defendant established that it had a meritorious defense to the action by submitting an affidavit by its president and founder outlining in detail the routine safety practices defendant used when operating a sump pump and hose to remove flood water from its basement—thereby doing more than merely “generally vouching for the well-maintained condition of the premises” (Zapater v 2540 Assoc., 250 AD2d 508 , 508

p. 645

[1st Dept 1998]; see Peacock v Kalikow, 239 AD2d 188 , 190 [1st Dept 1997]).

Concur—Tom, J.P., Friedman, Saxe and Richter, JJ.

Cases cited

Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co. 67 NY2d 138 N.Y. 1986-03-27 at 141-142 p. 644
Zapater v. 2540 Associates, Inc. 250 AD2d 508 N.Y. App. Div. 1998-05-21 at 508 p. 644