Fitzgerald Law Firm, P.C., Yonkers, NY (John M. Daly and John
J. Leen of counsel), for appellant.
Seamans Cherin & Mellott, LLC, White Plains, NY (Steven
R. Kramer and Kelly Robreno Koster of counsel), for
C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from an order of the Supreme Court, Kings
County (Spodek, J.), dated September 9, 2015, which granted
the defendant's motion to vacate an order of the same
court dated August 15, 2011, granting the plaintiff's
motion for leave to enter a default judgment upon the
defendant's failure to appear or answer, and a judgment
of the same court entered June 3, 2013, after an inquest, in
the total sum of $4, 578, 190.
that the order dated September 9, 2015, is modified, on the
law, by deleting the provision thereof granting that branch
of the defendant's motion which was to vacate the order
dated August 15, 2011, and substituting therefor a provision
denying that branch of the motion; as so modified, the order
dated September 9, 2015, is affirmed, with costs to the
plaintiff, and the matter is remitted to the Supreme Court,
Kings County, for the entry of an appropriate amended
February 25, 2010, the plaintiff commenced this action to
recover damages for personal injuries she allegedly sustained
from the ingestion of lead. The complaint alleged that the
defendant corporation had actual or constructive notice of a
lead paint condition in the subject apartment on November 1,
1989, and the plaintiff lived in the apartment from her birth
in August 1990 until October 31, 1996.
defendant was served with process on March 9, 2010, by
service upon the Secretary of State, which forwarded process
to the defendant's address on file. However, the
defendant had moved its business address in or about 2001
without notifying the Secretary of State. The defendant did
not correct the record of its address until July 2012.
order dated August 15, 2011, the plaintiff's motion for
leave to enter a default judgment against the defendant upon
its failure to appear or answer was granted without
opposition, and on June 3, 2013, after an inquest, judgment
was entered against the defendant for the total sum of $4,
578, 190, which included future damages and pre-verdict
interest from August 31, 1990.
service of an order to show cause dated September 19, 2013,
the defendant moved pursuant to CPLR 317 to vacate its
default. In support of the motion, the defendant's
principal, Rubin Dukler, submitted an affidavit stating that
it appeared that the plaintiff's family moved into the
apartment on November 1, 1989, months before the plaintiff
was born, and "it is very unlikely that myself or others
working for the company would be aware that a young child was
living in the apartment if the child was born many months
after that date." The defendant submitted a proposed
answer, verified by its attorney, which was based, in part,
upon information and belief. The defendant further contended
that the damages award was excessive.
plaintiff, in opposition, claimed, inter alia, that the
defendant did not state a meritorious defense. The plaintiff
noted that after it was determined that her blood lead level
was 20 micrograms per deciliter or higher, the apartment in
question was inspected in June 1993 by the New York City
Department of Health, and lead violations were found. In
October 1993, the apartment was reinspected, and it was
determined that the violations had not been corrected. The
violations were not certified as corrected until May 1994.
order appealed from, the Supreme Court granted the
defendant's motion to vacate.
317 provides, in pertinent part: "A person served with a
summons other than by personal delivery to him or to his
agent for service designated under rule 318, within or
without the state, who does not appear may be allowed to
defend the action within one year after he obtains knowledge
and entry of the judgment, but in no event more than five
years after such entry, upon a finding of the court that he
did not personally receive notice of the summons in time to
defend and has a meritorious defense."
assuming that the defendant did not personally receive notice
of the summons in time to defend, the defendant failed to
establish the existence of a potentially meritorious defense.
The defendant's claim that it was not liable under New
York City lead abatement regulations because it lacked actual
or constructive notice that a child six years of age or under
was residing in one of its residential units (see Juarez
v Wavecrest Mgt. Team, 88 N.Y.2d 628), was not supported
by any sworn statements of fact. The statement of the
defendant's principal that "it is very unlikely that
myself or others working for the company would be aware that
a young child was living in the apartment" was
insufficient. Its proposed answer, verified by its attorney,
which was based, in part, upon information and belief, also
was insufficient (see Nitze v Gallagher, 138 A.D.2d
466). Further, there was evidence in the record the defendant
was cited for lead paint violations around the time of the
injury and failed to correct those violations expeditiously.
in support of its motion, the defendant argued that if the
Supreme Court did not vacate its default, the judgment should
otherwise be vacated because it was not in compliance with
the CPLR. In her papers submitted in opposition to the
motion, the plaintiff conceded that the judgment erroneously
awarded prejudgment interest from August 31, 1990, the date
of the plaintiff's birth, instead of from January 14,
2013, the date of the inquest. Similarly, in her papers
opposing the motion the plaintiff, in effect, conceded that
the judgment was not in the ...