Opinion
2019-06695 Index No. 611892/17
05-05-2021
Michael FLANAGAN, respondent, v. James P. DELANEY, et al., appellants.
O'Dwyer & Bernstien, LLP, New York, N.Y. (James P. Delaney pro se of counsel), for appellants. John L. O'Kelly, East Williston, NY, for respondent.
O'Dwyer & Bernstien, LLP, New York, N.Y. (James P. Delaney pro se of counsel), for appellants.
John L. O'Kelly, East Williston, NY, for respondent.
LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered April 4, 2019. The order, insofar as appealed from, (a) denied that branch of the defendants' motion which was for leave to renew their opposition to the plaintiff's motion for leave to enter a default judgment against them which had been granted in an order of the same court entered October 12, 2018, (b) in effect, upon reargument, adhered to its prior determination in the order entered October 12, 2018, granting the plaintiff's motion for leave to enter a default judgment against them, and (c) denied those branches of the defendants' motion which were pursuant to CPLR 5015(a)(4) and 317 to vacate their default in answering the complaint and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
ORDERED that the order entered April 4, 2019, is affirmed insofar as appealed from, with costs.
The plaintiff alleges that, in 2009, the defendants, James P. Delaney and Dundalk NY, Inc. (hereinafter Dundalk), agreed that they would purchase the plaintiff's 50% interest in Dundalk. In November 2017, the plaintiff commenced this action against the defendants to recover damages for breach of the purchase agreement. The defendants failed to appear or answer the complaint. In February 2018, the plaintiff moved for leave to enter a default judgment against the defendants. In support of his motion, the plaintiff submitted evidence that Delaney had been served pursuant to CPLR 308(2) by delivery of the summons and complaint upon the doorman of the apartment building where Delaney resided and by mailing a copy of the summons and complaint to Delaney at his residence, and that Dundalk had been served pursuant to Business Corporation Law § 306. In addition, the plaintiff established a viable cause of action by submitting a detailed complaint, which he personally verified, and he demonstrated that the defendants had failed to answer the complaint. In May 2018, the defendants filed an answer and opposition to the plaintiff's motion. In support of their opposition, the defendants submitted the affirmation of their attorney, who averred that Delaney was never served. In an order entered October 12, 2018, the Supreme Court granted the plaintiff's motion.
In November 2018, the defendants moved, inter alia, for leave to reargue and renew their opposition to the plaintiff's prior motion, pursuant to CPLR 5015(a)(4) and 317 to vacate their default in answering the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. In support of their motion, the defendants submitted, among other things, affidavits from Delaney and an employee who worked in the apartment building where Delaney resided. In an order entered April 4, 2019, the Supreme Court, inter alia, denied that branch of the defendants' motion which was for leave to renew, in effect, granted that branch of the defendants' motion which was for leave to reargue and, upon reargument, adhered to its prior determination granting the plaintiff's motion for leave to enter a default judgment against the defendants, and denied those branches of the defendants' motion which were to vacate their default in answering and to dismiss the complaint. The defendants appeal.
"A motion for leave to renew is addressed to the sound discretion of the court" ( Matheus v. Weiss, 20 A.D.3d 454, 454–455, 797 N.Y.S.2d 774 ). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (id. 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (id. 2221[e][3]; see Okumus v. Living Room Steak House, Inc., 112 A.D.3d 799, 977 N.Y.S.2d 340 ). A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Carmike Holding I, LLC v. Smith, 180 A.D.3d 744, 747, 120 N.Y.S.3d 141 ; Semenov v. Semenov, 98 A.D.3d 962, 963, 950 N.Y.S.2d 570 ).
Here, the new facts submitted in support of that branch of the defendants' motion which was for leave to renew were not sufficient to change the prior determination granting the plaintiff's motion for leave to enter a default judgment against them. In addition, the defendants did not demonstrate a reasonable justification for their failure to include those facts, which were then available to them, in their original opposition (see Marrero v. Crystal Nails, 77 A.D.3d 798, 799, 909 N.Y.S.2d 136 ; Development Strategies Co., LLC, Profit Sharing Plan v. Astoria Equities, Inc., 71 A.D.3d 628, 629, 896 N.Y.S.2d 396 ). Accordingly, that branch of the defendants' motion which was for leave to renew was properly denied.
That branch of the defendants' motion which was pursuant to CPLR 5015(a)(4) to vacate their default in answering the complaint was also properly denied. The affidavit of the plaintiff's process server constituted prima facie evidence of proper service upon Delaney pursuant to CPLR 308(2) (see Bedessee Imports, Inc. v. Najjar, 170 A.D.3d 640, 95 N.Y.S.3d 577 ). Contrary to the defendants' contention, the plaintiff's process server averred that he was denied access to Delaney's apartment. Accordingly, Delaney was properly served pursuant to CPLR 308(2) by delivery of process to the doorman of the apartment building where Delaney resided and by mailing a copy to him at his residence (see F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797, 396 N.Y.S.2d 343, 364 N.E.2d 1115 ; Citibank, N.A. v. Balsamo, 144 A.D.3d 964, 965, 41 N.Y.S.3d 744 ; Bank of Am., N.A. v. Grufferman, 117 A.D.3d 508, 985 N.Y.S.2d 532 ). Furthermore, the affirmation of the plaintiff's attorney constituted prima facie evidence of proper service upon the corporate defendant pursuant to Business Corporation Law § 306 (see CPLR 311[a][1] ; 2106[a]; Ross v. Sunrise Home Improvement, 186 A.D.3d 633, 634, 129 N.Y.S.3d 164 ; NYCTL 2013–A Trust v. Heights Houses Corp., 172 A.D.3d 1078, 1079, 98 N.Y.S.3d 460 ). Contrary to the defendants' contention, the typographical error contained in the affirmation of service regarding Dundalk was a mere irregularity (see CPLR 2001 ; Mendez v. Kyung Yoo, 23 A.D.3d 354, 355–356, 806 N.Y.S.2d 67 ; Mrwik v. Mrwik, 49 A.D.2d 750, 751, 372 N.Y.S.2d 693 ). In this regard, the plaintiff presented a copy of the receipt for service from the Secretary of State to demonstrate that Dundalk was in fact served with process (see Mendez v. Kyung Yoo, 23 A.D.3d at 356, 806 N.Y.S.2d 67 ; see generally Business Corporation Law § 306[b][1] ; Bevilacqua v. Bloomberg, L.P., 70 A.D.3d 411, 414, 895 N.Y.S.2d 347 ). Delaney's conclusory denials of service were insufficient to rebut the presumption of proper service established by the plaintiff's evidence (see Ross v. Sunrise Home Improvement, 186 A.D.3d at 634, 129 N.Y.S.3d 164 ; NYCTL 2013–A Trust v. Heights Houses Corp., 172 A.D.3d at 1079, 98 N.Y.S.3d 460 ; HSBC Bank USA, N.A. v. Eliyahu, 170 A.D.3d 1130, 1131, 97 N.Y.S.3d 259 ).
That branch of the defendants' motion which was pursuant to CPLR 317 to vacate their default in appearing and answering was properly denied. In support thereof, the defendants were required to demonstrate that they did not personally receive notice of the summons in time to defend and a potentially meritorious defense (see CPLR 317 ; 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 ; Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 728, 469 N.Y.S.2d 74, 456 N.E.2d 1197 ; PHH Mtge. Corp. v. Muricy, 135 A.D.3d 725, 726, 24 N.Y.S.3d 137 ). The evidence demonstrating that copies of the summons and complaint were mailed to the correct address of each defendant created a presumption of proper mailing and of receipt, and Delaney's mere denial of receipt was insufficient to rebut that presumption (see Williamson v. Marlou Cab Corp., 129 A.D.3d 711, 713, 9 N.Y.S.3d 410 ; Burekhovitch v. Tatarchuk, 99 A.D.3d 653, 654, 952 N.Y.S.2d 81 ). The defendants' contention that the plaintiff waived late service of the answer and the default was raised for the first time in connection with the defendants' motion for reargument. A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented (see Matter of Anthony J. Carter, DDS, P.C. v. Carter, 81 A.D.3d 819, 820, 916 N.Y.S.2d 821 ; Woody's Lbr. Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590, 592–593, 817 N.Y.S.2d 391 ; Gellert & Rodner v. Gem Community Mgt., Inc., 20 A.D.3d 388, 388, 797 N.Y.S.2d 316 ). Upon reargument, the Supreme Court properly adhered to its prior determination. In any event, the defendants' contention is without merit (see Nasca v. Gertel, 5 A.D.3d 361, 772 N.Y.S.2d 544 ; Brenner v. Cross County Shopping Ctr., 308 A.D.2d 469, 470, 764 N.Y.S.2d 638 ).
AUSTIN, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur.