Cristo Bros. v. M. Cristo, Inc.

Kane, J. (dissenting).

We respectfully dissent. In the present case, defendant has moved to be relieved of its default which was caused by the undisputed fact that it did not receive the summons and complaint served pursuant to section 306 of the Business Corporation Law upon the Secretary of State. Under CPLR 317, a person served with a summons other than by personal delivery to him or his agent for service designated under CPLR 318 may be relieved of a default upon the finding of the court that he did not personally receive notice of the summons in time to defend and that he has a…