Vogel v. Asgrow Mandeville Co.

Kane, J. P.,

dissents and votes to reverse in the following memorandum. Kane, J. P. (dissenting). In my opinion it was an abuse of discretion for Special Term to refuse to vacate plaintiff’s default judgment. The record demonstrates that plaintiff’s attorney was fully aware of defendant’s status as a wholly owned subsidiary of the Upjohn Company. When efforts to settle his client’s dispute through correspondence with the parent proved unsuccessful, the instant litigation was commenced by service of process on the Secretary of State. While a defendant should not ordinarily benefit from its unilateral failure to provide the Secretary of State with a current address, plaintiff has not shown that he was unable to effect personal service on this defendant or, more importantly, that he was ignorant of defendant’s actual location. Under the^e circumstances, it seems plain to me that defendant has presented an acceptable excuse for its default (see Brac Constr. Corp. v Di-Com Corp., 51 AD2d 740). Moreover, defendant requested that plaintiff consent to a vacatur of the default judgment within a month after it was received at the Upjohn headquarters, and has offered to post security for the full amount thereof in the event its defense should not prevail. Finally, the affidavits of its attorneys disclose the existence of a meritorious defense, and it would be pointless to insist that such evidentiary matters be furnished by a corporate officer, particularly when pleadings may be verified by the attorney of a foreign corporation (CPLR 3020, subd [d], par 3; see CPLR 3215, subd [e]). Accordingly, I would reverse the order appealed from and grant defendant’s motion on the condition it has suggested.