Hilton Check Cashing Corp. v. K. Thompson Foods, LLC

Full title: Hilton Check Cashing Corp., Plaintiff-Respondent, v. K. Thompson Foods…

Court: Supreme Court of New York, First Department

Date published: Nov 17, 2023

2023 N.Y. Slip Op. 51205 (N.Y. App. Term 2023)

Opinion

No. 23-056

11-17-2023

Hilton Check Cashing Corp., Plaintiff-Respondent, v. K. Thompson Foods LLC, Defendant-Appellant, and Jared Edmond, Comanita Scott, Grady Marceles Reid and Joshua Lampley, Defendants.

PER CURIAM.

Unpublished Opinion

PRESENT: Hagler, P.J., Tisch, J.

PER CURIAM.

Defendant K. Thompson Foods LLC appeals from an order of the Civil Court of the City of New York, New York County (Erik L. Gray, J.), entered March 14, 2023, which denied its motion to vacate a default judgement.

Order (Erik L. Gray, J.), entered March 14, 2023, affirmed, with $10 costs.

Defendant K. Thompson Food LLC's motion to vacate its default in answering for lack of jurisdiction (see CPLR 5015[a][4]) was properly denied. The process server's affidavit indicating service upon defendant through the Secretary of State was prima facie evidence of proper service (see Gourvitch v 92nd & 3rd Rest Corp., 146 A.D.3d 431 [2017]; Shanker v 119 E.30th, Ltd., 63 A.D.3d 553, 554 [2009]). In opposition, defendant did not contend that the address on file with the Secretary of State was incorrect, and the mere denial of receipt was insufficient to rebut the presumption that service was proper (see Frazier v 811 E. 178th St. Realty Corp., 183 A.D.3d 413 [2020]; Grinshpun v Borokhovich, 100 A.D.3d 551, 552 [2012], lv denied 21 N.Y.3d 857 [2013]).

Nor was defendant entitled to vacatur relief pursuant to CPLR 5015(a)(1). Inasmuch as the only excuse offered is the meritless improper service argument, defendant has no reasonable excuse for the default (see Citibank, N.A. v K.L.P. Sportswear, Inc., 144 A.D.3d 475, 476 [2016]).

Defendant was also not entitled to relief pursuant to CPLR 317 because it failed to rebut plaintiff's proof that it received actual notice of the action in time to defend (see Fisher v Lewis Constr. NYC Inc., 179 A.D.3d 407 [2020]). The affidavit of service indicating that, pursuant to CPLR 3215, an additional copy of the summons and complaint were mailed to defendant at its correct business address, created a presumption of proper mailing and receipt, and defendant did not adequately rebut that presumption (see Thas v Dayrich Trading, Inc., 78 A.D.3d 1163 [2010]; Frazier v 811 E. 178th St. Realty Corp., 183 A.D.3d at 413).