Fuestel v. Gill

In an action to recover a real estate brokerage commission, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated August 8, 2006, which denied his motion to vacate a judgment of the same court entered March 28, 2006, upon his default in answering the complaint. Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to vacate the judgment entered March 28, 2006 is granted. The Supreme Court should have granted the defendant’s motion to vacate the default judgment pursuant to CPLR 317 [426] because he established that he did not receive notice of the summons in time to defend the action (see CPLR 317; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Rios v Starrett City, Inc., 31 AD3d 418 [2006]), and he has a potentially meritorious defense (see Heelan Realty & Dev. Corp. v Ocskasy, 27 AD3d 620, 621 [2006]; R.R. Ragette, Inc. v D’Incecco, 17 AD3d 436, 437 [2005]; see also Marinoff v Natty Realty Corp., 17 AD3d 412, 413 [2005]). The defendant’s remaining contentions are not properly before this Court as they were not raised in the Supreme Court. Mastro, J.P., Ritter, Skelos, Carni and McCarthy, JJ., concur.