Opinion
11484N Index 28099/17E
05-07-2020
Aldrea FRAZIER, Plaintiff-Respondent, v. 811 E. 178TH ST. REALTY CORP., Defendant-Appellant.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellant. Michelstein & Ashman, PLLC, New York (Gil J. Winokur of counsel), for respondent.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellant.
Michelstein & Ashman, PLLC, New York (Gil J. Winokur of counsel), for respondent.
Acosta, P.J., Renwick, Richter, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 3, 2019, which denied defendant's motion to vacate the default judgment entered against it, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in determining that under the circumstances, defendant's failure to maintain an accurate address with the Secretary of State for six years did not constitute a reasonable excuse for its default ( NYCTL 1998–2 Trust v. Alanis Realty LLC, 176 A.D.3d 486, 486–487, 110 N.Y.S.3d 694 [1st Dept. 2019] ; NYCTL 2015–A Trust v. Diffo Props. Corp., 171 A.D.3d 538, 539, 98 N.Y.S.3d 172 [1st Dept. 2019] ; see CPLR 5015[a][1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142–143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ).
Defendant was not entitled to relief under CPLR 317 because it failed to rebut plaintiff's proof showing that it received actual notice of the action in time to defend, since the summons and complaint, with the motion for a default judgment, were sent to defendant's president. The order granting a default and directing an inquest was also sent to the president at the same address. The affidavit of defendant's president claiming not to have received the complaint or default order was conclusory, as he did not discuss the address where those mailings were sent, and did not address the fact that the default judgment, which he admitted having received, was sent to the same address (see Reliable Abstract Co., LLC v. 45 John Lofts, LLC, 152 A.D.3d 429, 430, 58 N.Y.S.3d 365 [1st Dept. 2017], lv dismissed 30 N.Y.3d 1056, 69 N.Y.S.3d 585, 92 N.E.3d 808 [2018] ).
Plaintiff submitted an affidavit of merit setting forth the elements of a viable negligence claim based on personal knowledge (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70–71, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ). Even assuming that her affidavit of merit did not satisfy CPLR 3215(f), that defect would not provide a basis to vacate the default judgment where defendant moved to vacate the judgment under CPLR 5015(a)(1), but failed to demonstrate a reasonable excuse for its default ( Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 N.Y.3d 200, 203–204, 969 N.Y.S.2d 424, 991 N.E.2d 198 [2013] ).