Persaud v. Gallante Properties, Inc. , 782 N.Y.S.2d 762 ( 2004 )

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Queens County (Weiss, J.), dated September 23, 2003, which granted the defendant’s motion to vacate a judgment of the same court, dated February 21, 2003, entered upon its default in answering or appearing, and (2) an order of the same court, dated December 11, 2003, which granted the defendant’s motion to direct the plaintiffs to either return the sum of $9,897.99 to it or post a surety bond in that amount.

Ordered that the orders are affirmed, with one bill of costs.

Pursuant to CPLR 317, relief from a judgment entered upon default may be obtained upon a showing that the defendant did not receive actual notice of the summons in time to defend and has a meritorious defense (see Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453 [2000]; Concepcion v Talon Realty Corp., 258 AD2d 494 [1999]). Here, the defendant made such showing. Accordingly, the Supreme Court properly granted the motion to vacate the judgment entered upon default. Moreover, given that the judgment was properly vacated, the order directing the plaintiffs to either return the sum of $9,897.99 to the defendant or post a surety bond in that amount was proper. Florio, J.P., Goldstein, Adams, Rivera and Spolzino, JJ., concur.