Opinion
13246N Index No. 651839/19 Case No. 2020-01886
03-02-2021
SALISH LODGE LLC, Plaintiff–Appellant, v. GIFT MANAGEMENT INC. doing business as Giift.com, Defendant–Respondent.
Law Offices of Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for appellant. Brody & Browne LLP, New York (Lauren Reiter Brody of counsel), for respondent.
Law Offices of Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for appellant.
Brody & Browne LLP, New York (Lauren Reiter Brody of counsel), for respondent.
Gische, J.P., Mazzarelli, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered March 6, 2020, which granted defendant's motion to vacate a default judgment against it, unanimously reversed, on the law, without costs, and the motion denied.
Defendant failed to demonstrate a reasonable excuse for its default or a meritorious defense to the action to justify vacatur of the default judgment (see generally Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). Plaintiff's service of process was deemed complete when defendant's registered agent in Delaware was served, regardless of whether it ultimately reached defendant (see e.g. Cedeno v. Wimbledon Bldg. Corp., 207 A.D.2d 297, 298, 615 N.Y.S.2d 40 [1st Dept. 1994], lv dismissed 84 N.Y.2d 978, 622 N.Y.S.2d 917, 647 N.E.2d 123 [1994] ). Moreover, the affidavit from defendant's CEO, stating that the email from the registered agent regarding service of process was sent to his "promotions" inbox, is simply insufficient to rebut the presumption of proper service (see e.g. Fisher v. Lewis Constr. NYC Inc., 179 A.D.3d 407, 408, 117 N.Y.S.3d 29 [1st Dept. 2020] ). Defendant does not dispute that it breached its obligation to update its address with its registered agent, which led to its failure to receive service of process (see NYCTL 1999–1 Trust v. 114 Tenth Ave. Assoc., Inc., 44 A.D.3d 576, 845 N.Y.S.2d 235 [1st Dept. 2007], appeal dismissed 10 N.Y.3d 757, 853 N.Y.S.2d 540, 883 N.E.2d 366 [2008], cert denied 555 U.S. 970, 129 S.Ct. 458, 172 L.Ed.2d 327 [2008] ).
Even if defendant's excuse were deemed reasonable, it failed to demonstrate a meritorious defense to the action (see NYCTL 2015–A Trust v. Diffo Props. Corp., 171 A.D.3d 538, 98 N.Y.S.3d 172 [1st Dept. 2019], lv dismissed 34 N.Y.3d 1198, 123 N.Y.S.3d 565, 146 N.E.3d 530 [2020] ). There is no evidence that defendant maintained the payments owed to plaintiff in a purported "reserve fund," or that plaintiff had knowledge of or ever agreed to the creation of such a fund. Indeed, emails from defendant's CEO to plaintiff's representatives suggest that defendant knew that it owed plaintiff the amounts sought.
Defendant is also not entitled to relief under CPLR 317. Regardless of whether plaintiff served defendant's agent for service designated under CPLR 318, a meritorious defense is required under CPLR 317.