defendant has a meritorious defense in New York

1986Because the issue of whether a defendant has a meritorious defense is irrelevant to the question of whether a judgment should be vacated for lack of jurisdiction (see, Shaw v Shaw, 97 AD2d 403, 404 ), defendant, having shown lack of personal jurisdiction, would normally be entitled to a vacatur of the default pursuant to CPLR 5015 (a) (4).

1985“Absent proper service, a default judgment is a nullity, and, once it is shown that there was no service, the judgment must be unconditionally vacated * * * Whether or not the defendant has a meritorious defense is irrelevant to the question of whether the judgment should be vacated for a lack of jurisdiction * * * The existence of a meritorious defense only becomes significant in determining whether to open a default once it is clear that service has properly been made” (Shaw v Shaw, 97 AD2d 403, 404 ).

2009A default judgment may be vacated pursuant to CPLR 317 where the defendant was served by a method other than personal delivery and did not actually receive notice of the summons in time to defend, provided that the defendant has a meritorious defense (see Thakurdyal v 341 Scholes St., LLC, 50 AD3d 889 [2008]).

2003In addition, the defendant has a meritorious defense (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Matter of Stralem, 303 AD2d 120 [2003]; Federal Natl.

1997However, where the motion to vacate is based on a failure of service, leading to a lack of personal jurisdiction, the issue of a meritorious defense is not material — the default will be unconditionally vacated in the absence of jurisdiction (see, DeMartino v Rivera, 148 AD2d 568 ; Shaw v Shaw, 97 AD2d 403, 404 ; McMullen v Arnone, 79 AD2d 496 ).

1997It 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 ).

1997However, where the motion to vacate is based on a failure of service, leading to a lack of personal jurisdiction, the issue of a meritorious defense is not material — the default will be unconditionally vacated in the absence of jurisdiction (see, DeMartino v Rivera, 148 AD2d 568 ; Shaw v Shaw, 97 AD2d 403, 404 ; McMullen v Arnone, 79 AD2d 496 ).

1997It 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 ).

1984U Subsequent to Special Term’s denial of relief to defendant, the Court of Appeals held in Taieb v Hilton Hotels Corp. ( 60 NY2d 725 ) that CPLR 317 is applicable to the nonpersonal service of process made through the Secretary of State, and if the defendant did not receive actual notice of the action in time to answer the complaint, then the defendant need show no excuse for the default, as long as the defendant has a meritorious defense.

1983Whether or not the defendant has a meritorious defense is irrelevant to the question of whether the judgment should be vacated for a lack of jurisdiction (Pine v Town of Hoosick, 56 AD2d 692 ; Queensboro Leasing v Resnick, 78 Misc 2d 919 ).

1983The existence of a meritorious defense only becomes significant in determining whether to open a default once it is clear that service has properly been made (Mayers v Cadman Towers, 89 AD2d 844 ).

1983Whether or not the defendant has a meritorious defense is irrelevant to the question of whether the judgment should be vacated for a lack of jurisdiction (Pine v Town of Hoosick, 56 AD2d 692 ; Queensboro Leasing v Resnick, 78 Misc 2d 919 ).