New York State Higher Education Services Corp. v. Adams

OPINION OF THE COURT

Joseph Harris, J.

This case poses the following conundrum. It is well settled that a defendant moving to vacate a default judgment, under CPLR 317, bears the burden of establishing, both, that the defendant did not personally receive notice of the pending lawsuit in time to defend and that the defendant has a meritorious defense (see, CPLR 317; see also, Winters v Albany Executive House Apts., 102 AD2d 985; Sorgie v Dalton, 90 AD2d 790, appeal dismissed 58 NY2d 968, rearg denied 59 NY2d 762). However, where the motion to vacate is based on a failure of *284service, leading to a…