Opinion
2013-11-6
Clover M. BARRETT, appellant, v. 340 ATLANTIC AVENUE, LLC, respondent.
Clover Barrett & Associates, P.C., Brooklyn, N.Y. (Clover M. Barrett, pro se, of counsel), for appellant. Patrick J. Hayes, Brooklyn, N.Y. (Christopher J. Quvus of counsel), for respondent.
Clover Barrett & Associates, P.C., Brooklyn, N.Y. (Clover M. Barrett, pro se, of counsel), for appellant. Patrick J. Hayes, Brooklyn, N.Y. (Christopher J. Quvus of counsel), for respondent.
In an action pursuant to RPAPL article 8 for injunctive relief, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated May 1, 2012, as, after a hearing, granted her cross motion for leave to enter a judgment against the defendant upon its default in appearing or answering only to the extent that a judgment would be entered against the defendant if the defendant failed to serve and file an answer within 30 days.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The summons and complaint in this action were served on the defendant pursuant to Limited Liability Company Law § 303(a) on November 6, 2009 ( seeCPLR 311–a[a] ), and an additional copy of the summons and complaint were delivered to the place of business of a member of the defendant on December 3, 2009. On January 8, 2010, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, for lack of personal jurisdiction. The plaintiff cross-moved for leave to enter a default judgment. In opposition, the member asserted in her affidavit that she first learned of the summons and complaint on December 10, 2009, after it had been delivered to her receptionist. After a hearing to determine the validity of service of process, the Supreme Court granted the plaintiff's cross motion only to the extent that a judgment would be entered against the defendant if the defendant failed to serve and file an answer within 30 days.
On appeal, the plaintiff contends that her cross motion for leave to enter a default judgment should have been granted in its entirety. However, contrary to the *271plaintiff's contention, the defendant did not receive “notice of the summons in time to defend and has a meritorious defense” (CPLR 317; see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142, 501 N.Y.S.2d 8, 492 N.E.2d 116;Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 728, 469 N.Y.S.2d 74, 456 N.E.2d 1197;Fleisher v. Kaba, 78 A.D.3d 1118, 1119, 912 N.Y.S.2d 604;Cohen v. Michelle Tenants Corp., 63 A.D.3d 1097, 1098, 882 N.Y.S.2d 282;Tselikman v. Marvin Ct., Inc., 33 A.D.3d 908, 909, 824 N.Y.S.2d 298;Calderon v. 163 Ocean Tenants Corp., 27 A.D.3d 410, 411, 811 N.Y.S.2d 428). Furthermore, there is no basis to conclude that the defendant deliberately attempted to avoid notice of the action ( see Tselikman v. Marvin Ct., Inc., 33 A.D.3d at 909, 824 N.Y.S.2d 298;Calderon v. 163 Ocean Tenants Corp., 27 A.D.3d at 411, 811 N.Y.S.2d 428). Accordingly, we affirm the order insofar as appealed from.