                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   519969
________________________________

TAMMY McCORD,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

GLEN LARSEN,
                    Appellant.
________________________________


Calendar Date:   September 15, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


      Wilson, Bave, Conboy, Cozza & Couzens, PC, White Plains
(Donna L. Cook of counsel), for appellant.

      Mainetti, Mainetti & O'Connor, PC, Kingston (Michael A.
Mainetti of counsel), for respondent.

                             __________


Lahtinen, J.

      Appeal from an order of the Supreme Court (Gilpatric, J.),
entered August 12, 2014 in Ulster County, which, among other
things, denied defendant's motion to vacate a default judgment
entered against him.

      Plaintiff rented an apartment in a building owned by
defendant and allegedly fell at the premises in October 2008 when
a porch railing broke. She commenced this personal injury action
by filing the summons and complaint in September 2011 and
purported to effect service by the deliver and mail method under
CPLR 308 (2) in October 2011. Defendant did not answer or
otherwise appear and plaintiff, after at least one unsuccessful
application, eventually obtained a default judgment on the issue
of liability in early April 2013. In January 2014, defendant
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moved to vacate the default under CPLR 317 and 5015 (a) (1), and
also to dismiss the action upon the ground that the court lacked
personal jurisdiction over him. Supreme Court denied defendant's
motion in its entirety and this appeal ensued.

      Where, as here, a jurisdictional issue is raised, such
issue should be addressed before the request for a discretionary
default vacatur since, "[i]f jurisdiction is found to be lacking,
the default judgment, as well as all subsequent proceedings,
would be rendered null and void" (State of New York Higher Educ.
Servs. Corp. v King, 232 AD2d 842, 843 [1996]; see Roberts v
Anka, 45 AD3d 752, 753 [2007], appeal dismissed 10 NY3d 851
[2008]). If the court finds that it has jurisdiction, the
analysis then turns to whether the default should be vacated
under CPLR 317 or 5015 (a) (1), the provisions authorizing such
relief (see Siegel, NY Prac § 108 [5th ed 2011]). CPLR 317 is
limited to a person who was not personally served and who moves
within the specified time frames. Although that statute does not
require establishing a reasonable excuse for the default, it does
require a showing that the defendant "'did not personally receive
notice of the summons in time to defend and has a meritorious
defense'" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67
NY2d 138, 141 [1986], quoting CPLR 317; see Brightly v Florida
N., Inc., 54 AD3d 1127, 1128 [2008]). "By contrast, CPLR 5015
(a) (1) is available to any defendant against whom a default
judgment was entered, provided that the defendant can demonstrate
both a reasonable excuse for the default and a potentially
meritorious defense" (Caba v Rai, 63 AD3d 578, 580 [2009]; see
generally Vincent C. Alexander, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, C317:2 [comparing CPLR 317 and CPLR
5015 (a) (1)]).

      Supreme Court did not err in finding that defendant had
been adequately served with the summons and complaint under CPLR
308 (2). That statute requires, in pertinent part, that service
be made upon "a person of suitable age and discretion at
[defendant's] actual place of business, dwelling place or usual
place of abode" and by thereafter mailing the summons to "his or
her last known residence or . . . actual place of business." For
purposes of this statute, an "'actual place of business' shall
include any location that the defendant, through regular
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solicitation or advertisement, has held out as its place of
business" (CPLR 308 [6]). Here, the summons and complaint was
personally served upon defendant's former spouse at a residence
on Woodcock Mountain Road in the hamlet of Salisbury, Town of
Blooming Grove, Orange County, and, within a few days, the
summons and complaint was mailed to defendant at such address.
Defendant contended that he had moved his landscaping business
and personal residence from that location prior to service.
Nonetheless, plaintiff produced proof that, among other things,
at the time of the deliver and mail service, defendant still
advertised the Woodcock Mountain Road location as his business
address and he had not changed his address from such location
with either the post office or the Department of Motor Vehicles.
The record supports finding that Supreme Court had personal
jurisdiction (see generally Tracy v Tracy, 69 AD3d 1218, 1219
[2010]; U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 908
[2005]; Robeck v Prasad, 6 AD3d 690, 690 [2004]).

      However, defendant's motion to vacate the default judgment
under CPLR 317 should have been granted. It is uncontested that
defendant had, in fact, moved out of the Woodcock Mountain Road
residence long before service of the summons and complaint. When
his former spouse was served in October 2011, she did not attempt
to pass the papers onto defendant, but instead wrote a letter
shortly thereafter to plaintiff's attorney stating, among other
things, that she "cannot and will not accept/hold/transfer any
documents addressed to or naming [defendant]." Defendant avers
that he did not receive the papers and did not have knowledge of
the lawsuit until his former spouse delivered a package of legal
papers to him nearly a year and a half later at the end of March
2013. He thereafter moved to vacate the default judgment within
less than a year.

      Inasmuch as defendant established that he was not served
personally, did not receive actual notice of the process in time
to defend the action and moved for vacatur in a timely fashion,
the remaining element to vacate under CPLR 317 is whether he had
a meritorious defense. "[P]ublic policy favors resolution of
cases on the merits" (Mead v Singleman, 24 AD3d 1142, 1144
[2005]) and "[t]he quantum of proof required in support of a
motion to vacate a default judgment is not as great as that which
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is required to oppose a motion for summary judgment" (Dodge v
Commander, 18 AD3d 943, 945 [2005]). Defendant submitted an
affidavit acknowledging that he was the owner/landlord of the
premises where plaintiff fell, but he maintained that he did not
have any actual or constructive notice of the alleged defective
condition of the rail. He stated that there had been no prior
complaints about or prior accidents involving the porch rail and
he had not observed a defective condition at the premises. This
proof was sufficient under the circumstances to raise a
meritorious defense and, accordingly, the default judgment should
be vacated. The remaining issues are academic or without merit.

     Peters, P.J., McCarthy and Lynch, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied defendant's motion
to vacate the default judgment; motion granted and default
judgment vacated upon the condition that defendant serve an
answer within 20 days of the date of this Court's decision; and,
as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
