Key Takeaway
Court case analysis on CPLR 317 defense for defendants who didn't receive proper notice of summons, exploring alternatives to CPLR 5015 for vacating defaults.
This article is part of our ongoing defaults coverage, with 90 published articles analyzing defaults issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Gershman v Midtown Moving & Storrage, Inc., 2014 NY Slip Op 08959 (2d Dept. 2014)
“The defendant did not adequately explain the failure to file with the Secretary of State the current address of the agent designated to receive process on its behalf (see Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788; Yellow Book of N.Y., Inc. v Weiss, 44 AD3d 755, 756; Franklin v 172 Aububon Corp., 32 AD3d 454, 454-455).
Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs’ motion, under the circumstances of this case, this Court may consider CPLR 317 as a basis for vacating the default (see CPLR 2001; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Brickhouse Masonry, LLC v Windward Bldrs., Inc., 101 AD3d 919, 920; Brac Constr. Corp. v Di-Com Corp., 51 AD2d 740, 740). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” to defend the action upon a finding by the court that the defendant “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 at 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Fleisher v Kaba, 78 AD3d 1118, 1119; Reyes v DCH Mgt., Inc., 56 AD3d 644). Here, the record reveals that neither the defendant nor its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend itself against this action (see Fleisher v Kaba, 78 AD3d at 1119;Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 411). There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process, especially since the plaintiffs had knowledge of the defendant’s actual business address (see Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405; Stein v A. Matarasso & Co., 143 AD2d 825, 826). In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense (see Blake v United States of Am., 109 AD3d at 505).”
I like this case because it one of those rare times where the Second Department explicitly held that while a reasonable excuse was not satisfied, relief in accordance with 317 was appropriate. I have not seen too many successful 317 challenges, which made this case interesting.
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Legal Update (February 2026): Since this 2014 post, CPLR 317 provisions regarding defective service and meritorious defense standards may have been modified through legislative amendments or updated court interpretations. Additionally, CPLR 2001’s application to substantive defenses and the procedural requirements for vacating defaults based on insufficient service may have evolved through subsequent appellate decisions. Practitioners should verify current CPLR 317 requirements and recent case law developments when addressing default judgments based on service defects.
Related: What “de novo” means in New York — trial de novo and de novo review, explained.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Default Judgments in New York Practice
Default judgments arise when a party fails to answer, appear, or respond within required time limits. Vacating a default under CPLR 5015 requires showing a reasonable excuse for the failure and a meritorious defense or cause of action. In no-fault practice, defaults occur frequently in arbitration and court proceedings, and the standards for granting and vacating defaults have generated substantial case law. These articles analyze default practice, restoration motions, and the circumstances under which courts excuse procedural failures.
90 published articles in Defaults
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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