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Balaguer v. 1854 Monroe Avenue Housing Development Fund Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 2, 2010

EULALIA BALAGUER, PLAINTIFF-APPELLANT,
v.
1854 MONROE AVENUE HOUSING DEVELOPMENT FUND CORP., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 28, 2008, which, in an action for personal injuries sustained on defendant's premises, denied plaintiff's motion for a default judgment and granted defendant's motion to compel plaintiff's acceptance of its answer, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Saxe, McGuire, Acosta, Abdus-Salaam, JJ.

15713/07

Plaintiff is not entitled to a default judgment because, having served defendant pursuant to Business Corporation Law § 306(b), her motion for a default judgment lacked proof of compliance with the additional service requirements of CPLR 3215(g)(4)(i) (Admiral Ins. Co. v Marriott Intl., Inc., 67 AD3d 526 [2009], citing, inter alia, Rafa Enters. v Pigand Mgt. Corp., 184 AD2d 329 [1992]; accord Schilling v Maren Enters., 302 AD2d 375 [2003]). Although asserted for the first time on appeal, we reach this issue since the omission is clear on the face of the record and could not have been avoided had it been raised before the motion court (see Rafa Enters., id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100302

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