Opinion
2017–09284 Index No. 2660/15
04-03-2019
PROGRESSIVE CASUALTY INSURANCE COMPANY, et al., Respondents, v. EXCEL PRODUCTS, INC., Appellant.
The Rybak Firm, PLLC, Brooklyn, N.Y. (Maksim Leyvi and Andrew S. Fisher of counsel), for appellant. McCormack & Mattei, P.C., Garden City, N.Y. (Melanie J. Rosen and Debra Ruderman of counsel), for respondents.
The Rybak Firm, PLLC, Brooklyn, N.Y. (Maksim Leyvi and Andrew S. Fisher of counsel), for appellant.
McCormack & Mattei, P.C., Garden City, N.Y. (Melanie J. Rosen and Debra Ruderman of counsel), for respondents.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims submitted by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated May 26, 2017. The order denied the defendant's motion pursuant to CPLR 317 and 5015(a)(1) to vacate a judgment of the same court entered September 3, 2015, upon its failure to appear or answer the complaint. ORDERED that the order is affirmed, with costs.
The plaintiffs commenced this action, inter alia, for a judgment declaring that they are not obligated to pay certain no-fault claims submitted by the defendant on the grounds that the defendant failed to comply with conditions precedent to coverage or to verify its claims. The plaintiffs served the defendant by delivering a copy of the summons and complaint to the Secretary of State pursuant to Business Corporation Law § 306. After the defendant failed to answer or appear, the plaintiffs moved for entry of a default judgment. The Supreme Court granted the plaintiffs' unopposed motion, and a default judgment was entered on September 3, 2015. On September 10, 2015, the plaintiffs served the defendant with a copy of the judgment with notice of entry. In January 2017, the defendant moved pursuant to CPLR 317 and 5015(a)(1) to vacate the judgment entered September 3, 2015. The court denied the motion, and the defendant appeals.
Pursuant to CPLR 317, a defaulting defendant who was "served with a summons other than by personal delivery" may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense ( CPLR 317 ; see 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 ; Booso v. Tausik Bros., LLC, 148 A.D.3d 1108, 1108, 49 N.Y.S.3d 311 ; Gershman v. Midtown Moving & Stor., Inc., 123 A.D.3d 974, 975, 999 N.Y.S.2d 485 ). Service on a corporation through delivery of process to the Secretary of State is not "personal delivery" to the corporation ( CPLR 317 ; see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 142, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; Booso v. Tausik Bros., LLC, 148 A.D.3d at 1108, 49 N.Y.S.3d 311 ). A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 726, 32 N.Y.S.3d 198 ; Sussman v. Jo–Sta Realty Corp., 99 A.D.3d 787, 788, 951 N.Y.S.2d 683 ).
Here, the defendant's principal submitted an affidavit in support of the motion in which she denied receipt of a copy of the summons and complaint and affirmed that she did not have notice of the action until in or about January 2017. However, the address she listed as the defendant's office was the same as the address that was on file with the Secretary of State. In addition, affidavits of service submitted by the plaintiffs demonstrated that notice of service and other documents in this action were mailed to that address. Under those circumstances, the conclusory and unsubstantiated denial of receipt of the summons and complaint was insufficient to establish that the defendant did not have actual notice of the action in time to defend (see Stevens v. Stepanski, 164 A.D.3d 935, 937, 84 N.Y.S.3d 1 ; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d at 726, 32 N.Y.S.3d 198 ; Capital Source v. AKO Med., P.C., 110 A.D.3d 1026, 1027, 973 N.Y.S.2d 794 ; Udell v. Alcamo Supply & Contr. Corp., 275 A.D.2d 453, 454, 713 N.Y.S.2d 77 ).
Similarly, the affidavit of the defendant's principal was insufficient to establish a reasonable excuse for the defendant's default pursuant to CPLR 5015(a)(1) (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co. , 67 N.Y.2d at 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; Xiao Lou Li v. China Cheung Gee Realty, LLC , 139 A.D.3d at 726, 32 N.Y.S.3d 198 ; Gershman v. Midtown Moving & Stor., Inc. , 123 A.D.3d at 975, 999 N.Y.S.2d 485 ). In addition, that branch of the motion which was pursuant to CPLR 5015(a)(1) was untimely, since the motion was not made within one year after the defendant was served with a copy of the judgment with notice of entry (see CPLR 5015[a][1] ; Deutsche Bank Natl. Trust Co. v. White , 110 A.D.3d 759, 760, 972 N.Y.S.2d 664 ).
In light of the foregoing, it is unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 317 or 5015(a)(1) (see Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d at 726, 32 N.Y.S.3d 198 ; Capital Source v. AKO Med., P.C., 110 A.D.3d at 1027, 973 N.Y.S.2d 794 ).
The defendant's remaining contentions are improperly raised for the first time on appeal (see Collins v. 7–11 Corp., 146 A.D.3d 931, 932, 45 N.Y.S.3d 536 ).
Accordingly, we agree with the Supreme Court's denial of the defendant's motion pursuant to CPLR 317 and 5015(1)(1) to vacate the judgment.
RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.