Opinion
2014-00246
06-24-2015
HAMILTON PUBLIC RELATIONS, etc., respondent, v. SCIENTIVITY, LLC, appellant.
Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and Christopher H. Feldman of counsel), for appellant.
Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and Christopher H. Feldman of counsel), for appellant.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Opinion In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Walker, J.), entered October 11, 2013, as denied its motion to vacate a judgment of the same court entered February 19, 2013, upon its failure to appear or answer.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
A party seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1), and thereupon to serve a late answer, must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1] ; 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 ; Garal Wholesalers, Ltd. v. Raven Brands, Inc., 82 A.D.3d 1041, 1041, 919 N.Y.S.2d 358 ). Here, the defendant did not contend that the address that it had on file with the Secretary of State was incorrect and, therefore, the mere denial of receipt of the summons and complaint, without more, was insufficient to demonstrate a reasonable excuse for its default (see Limited Liability Company Law § 303 [a]; Thas v. Dayrich Trading, Inc., 78 A.D.3d 1163, 1164, 913 N.Y.S.2d 269 ; May v. Hartsdale Manor Owners Corp., 73 A.D.3d 713, 900 N.Y.S.2d 359 ; Trini Realty Corp. v. Fulton Ctr., LLC, 53 A.D.3d 479, 480, 861 N.Y.S.2d 743 ).
Since the defendant failed to demonstrate a reasonable excuse for its default, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense (see Capital Source v. AKO Med., P.C., 110 A.D.3d 1026, 1026, 973 N.Y.S.2d 794 ; Tribeca Lending Corp. v. Correa, 92 A.D.3d 770, 938 N.Y.S.2d 599 ).
The mere denial of receipt of the summons and complaint is also insufficient to establish lack of notice of the action in time to defend for the purpose of CPLR 317 (see Capital Source v. AKO Med., P.C., 110 A.D.3d at 1027, 973 N.Y.S.2d 794 ; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 754, 941 N.Y.S.2d 679 ; Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081–1082, 923 N.Y.S.2d 572 ).
Since the defendant failed to demonstrate that it was entitled to vacate the default judgment pursuant to CPLR 5015(a)(1) or 317, any failure on the part of the plaintiff to comply with CPLR 3215(g)(4)(i) did not constitute a fatal defect (see Castle v. Avanti, Ltd., 86 A.D.3d 531, 532, 926 N.Y.S.2d 169 ; Peck v. Dybo Realty Corp., 77 A.D.3d 640, 641, 908 N.Y.S.2d 364 ; Mauro v. 1896 Stillwell Ave., Inc., 39 A.D.3d 506, 506–507, 833 N.Y.S.2d 206 ).
The defendant's remaining contentions are without merit.