Victor Technologies, Inc. v. Starcom, Inc. (153 A.D.2d 941, 1989)

Appeal by the plaintiff from an order of the Supreme Court, Kings County (Ramirez, J.), dated October 5, 1987, which, inter alia, granted the defendant’s motion to vacate a judgment previously entered upon its default.

Ordered that the order is affirmed, with costs.

CPLR 317 provides that a default judgment may be vacated "upon a finding of the court that [a defendant] did not personally receive notice of the summons in time to defend and has a meritorious defense.” The parties agree that, although service was properly made upon the Secretary of State, the defendant was never personally served with the summons and complaint in this action.

In accordance with the statutory requirement, the defendant was required to and did file an affidavit of merit (cf., Peralta v Heights Med. Center, 485 US 80; Siegel, NY L Dig No. 352 [Apr. 1989]). Under the circumstances, the default judgment was properly vacated. Mollen, P. J., Bracken, Rubin, Sullivan and Rosenblatt, JJ., concur.