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Default by Building Owner in Contractor Suit Vacated Even Though Service Via Secretary of State

Adria Tile, Inc.  v. Third Park Avenue Building Co., L.P.
(Supreme Court of the State of New York, Westchester County 6/27/2013)

Plaintiff commenced this breach of contract action seeking payment for renovation services rendered to defendant’s Manhattan commercial building.  Plaintiff served defendant by serving a copy of the summons and complaint upon the Secretary of State pursuant to Partnership Law § 121-109(A).  Defendant neither answered nor appeared in the action and a default judgment was entered and a Marshal’s notice was served.

We managed to open the default Defendant based upon the fact that Defendant’s default was not willful — it was a mistake.  Despite the fact that Defendant had a protocol that is followed in the ordinary course of business, individuals in the Defendant’s employ with decision making authority never received the Summons and Complaint.  Moreover and notably, the contract was for bathroom renovations to floors 25, 29, 31 and 37 of defendant's building.  However, plaintiff acknowledged that it only performed renovation work on the 25th and 29th floors.  Thus, a meritorious defense was raised.

Link to Full Text of Decision.


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