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RICHARD DETELICH v. MAYO'S R AND A CLOTHING (09/12/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY


September 12, 1969

RICHARD DETELICH, PLAINTIFF,
v.
MAYO'S R AND A CLOTHING, INC., DEFENDANT

L. Barron Hill, J.

Author: Hill

Motion to vacate judgment obtained on default after an inquest as to the amount of damages. Plaintiff fell in the parking area adjacent to defendant's premises and was sent a general release in favor of the defendant by the defendant's insurer. Plaintiff apparently considered the $50 offered as inadequate and served defendant, a foreign corporation, by serving the Secretary of State. No answer was forthcoming and plaintiff obtained a judgment on default for $1,805.50.

Defendant now moves to vacate the judgment on the ground that it never received the complaint which was sent to a law firm which had dissolved and was returned to the Secretary of State as "not forwardable". An affidavit of merits is supplied by an officer of defendant who claims the area where plaintiff fell was not owned by defendant but by a unnamed corporation of which he claims to be an officer. He also alleges that the paving was in good condition on the date of the accident. Plaintiff's affidavit alleges that the property on which the accident happened is attributed to defendant upon the Tax Assessor's rolls. Motion is denied. The burden is on the defendant to keep the Secretary of State advised of its correct address and the disclaimer of ownership is unconvincing, being accompanied by no proof and not even the name of the alleged true owner. Defendant's oversights should not prejudice the plaintiff who has proceeded as required under the statute.

19690912

© 1998 VersusLaw Inc.



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