1250 Broadway, 27th Floor New York, NY 10001



After Tomasina Gomez slipped and fell on some snow and ice on a public sidewalk, she sued the building owner by serving the papers on the Secretary of State, which forwarded the papers to a party which had then been designated to receive the documents.

After the owner failed to appear, a default judgment was awarded in Tomasina’s favor. And when the owner’s principal received an information subpoena (served in furtherance of judgment-collection efforts), a motion to vacate the default was made, and denied by a Bronx County Supreme Court Justice.

On appeal, the Appellate Division, First Department, reversed, noting "the strong public policy favoring resolution of cases on their merits." Interestingly, since local law up in Yonkers does not “’expressly make the landowner liable for failure to perform’ the duty to clean snow and ice from the sidewalk, and an abutting landowner is not liable in the absence of such a statute for failure to clear snow, ice and dirt,” the AD1 thought a viable defense to the action had been demonstrated.

And as for a reasonable excuse, the appellate court was receptive to the alleged non-receipt and lack of notice argument.  Even though the owner never updated its address with the Secretary of State that, alone, wasn’t enough to establish any kind of bad faith. The AD1 noted, “it cannot be inferred solely from the failure to update defendant's address with the Secretary of State that defendant was deliberately avoiding receiving notice ….”

Selena Gomez (no relation to the Plaintiff) once noted, “I believe in second chances, but I don’t believe in third or fourth chances.” 

Looks like the AD1 might agree ....

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Gomez v Karyes Realty Corp.