Eastern Resource Service, Inc. v. Mountbatten Surety Co.
Appellate Division of the Supreme Court of the State of New York
1Opinion of the Court
In an action against a surety for an alleged breach of a construction contract by its principal, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated March 19, 2001, which granted the defendant’s motion pursuant to CPLR 317 and 5015 (a) to vacate its default in appearing.
Ordered that the order is affirmed, with costs.
Since the defendant failed to prove that it did not personally receive notice of the summons in time to appear and defend the action, the Supreme Court erred in granting the defendant’s motion to vacate its default pursuant to CPLR 317…
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