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EASTERN RESOURCE SERVICE, INC. v. MOUNTBATTEN SURETY COMPANY, INC.

289 A.D.2d 283 (2001)

734 N.Y.S.2d 496

EASTERN RESOURCE SERVICE, INC., Appellant, v. MOUNTBATTEN SURETY COMPANY, INC., Respondent.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 10, 2001.

Ordered that the order is affirmed, with costs.

Since the defendant failed to prove that it did not personally receive notice of the summons in time to appear and defend the action, the Supreme Court erred in granting the defendant's motion to vacate its default pursuant to CPLR 317 (see, Nicolosi v Sleuth Sec. Sys., 247 A.D.2d 521). Nevertheless, the record amply supports the granting of the defendant's motion pursuant to...

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