We respectfully dissent. In the present case, defendant has moved to be relieved of its default which was caused by the undisputed fact that it did not receive the summons and complaint served pursuant to section 306 of the Business Corporation Law upon the Secretary of State. Under CPLR 317, a person served with a summons other than by personal delivery to him or his agent for service designated under CPLR 318 may be relieved of a default upon the finding of the court that he did not personally receive notice of the summons in time to defend and that he has a meritorious defense. Since the Secretary of State is not an agent under CPLR 318, the relief sought by defendant was within the scope of CPLR 317 (Cecelia v Colonial Sand & Stone Co., 85 AD2d 56). In this regard, it is uncontroverted that defendant failed to personally receive notice of the summons and complaint in time to defend, and a review of the record clearly reveals that defendant has a meritorious defense. Accordingly, defendant should be allowed to open the default pursuant to CPLR 317. We are unable to agree with the majority’s implicit holding that since defendant moved to vacate its default under CPLR 5015, we are precluded from consideration of a motion for the same relief pursuant to CPLR 317. Surely, plaintiff would not be prejudiced as defendant’s motion seeks, together with such other relief as the court may deem just and proper, to vacate its default, relief afforded under both sections. Accordingly, defendant’s failure to cite CPLR 317 in its motion papers should be disregarded (CPLR 2001; Fletcher v Greiner, 73 AD2d 591; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2001.03). Having reached the above conclusion, Vogel v Asgrow Mandeville Co. (74 AD2d 940, affd 55 NY2d 675) is not controlling (Cecelia v Colonial Sand & Stone Co., supra, p 58). The order should be reversed and defendant’s motion granted.