Emery Roth & Sons v. National Kinney Corp.

Kupferman, J.

(dissenting). I dissent and would reverse without prejudice to a further application with an affidavit of merits. A summons in this action for money damages was served in December, 1975, and there was an appearance and a demand for a coihplaint. The complaint was served by mail, and there is an affidavit covering it. The affiant was unavailable for the hearing before a Referee. However, the affidavit suffices. (Morrissey v Sostar, S. A., 63 AD2d 944.) In February, 1977, the plaintiff moved for a default judgment on the ground that there was a failure by the defendant Prudential Building Maintenance Corporation to move or answer, and the matter was referred to a Referee. The defendant presented an employee of the defendant who would under normal circumstances have been in charge of receiving and keeping track of such process, but she had no record of the receipt of the complaint. The court confirmed the recommendation of the Referee that leave be granted to the defendant to serve an answer. While it *622might be possible to reach the conclusion that either the complaint was not served by mail, or that if so served, it was not received, the surrounding circumstances would negate such a result. There was active litigation with the other defendants in the course of which copies of the motion papers containing the complaint were received by this defendant. At the very least, the defendant should have inquired with respect thereto and cannot simply, in view of the circumstances herein, deny any obligation so to do. While, of course, the law favors a determination on the merits rather than by default, we should at least require that this defendant submit an affidavit of merits for its defense. (Graziano v Albanese, 24 AD2d 712; cf. Comeau v Singer Furniture, 67 AD2d 622.)