Parker v. Bonitas Youth Services, Inc.

Parker v Bonitas Youth Servs., Inc. (2016 NY Slip Op 02157)

Parker v Bonitas Youth Servs., Inc.

2016 NY Slip Op 02157

Decided on March 24, 2016

Appellate Division, First Department

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.

Decided on March 24, 2016
Tom, J.P., Friedman, Saxe, Richter, JJ.

599N 103629/11

[*1]Shirley Parker, Plaintiff-Appellant,

v

Bonitas Youth Services, Inc., Defendant-Respondent.

Law Office of Certain & Zilberg, PLLC, New York (Michael Zilberg of counsel), for appellant.

Kelley Drye & Warren LLP, New York (Sean R. Flanagan of counsel), for respondent.

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2016

CLERK