Opinion
02-28-2017
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Plaintiffs–Appellants, v. DR. IBRAHIM FATIHA CHIROPRACTIC, P.C., Defendant–Respondent.
Freiberg, Peck, & Kang, LLP, Armonk (Yilo J. Kang of counsel), for appellants. Sobel Law Offices P.C., Syosset (Svetlana Sobel of counsel), for respondent.
Freiberg, Peck, & Kang, LLP, Armonk (Yilo J. Kang of counsel), for appellants.
Sobel Law Offices P.C., Syosset (Svetlana Sobel of counsel), for respondent.
RENWICK, J.P., MAZZARELLI, MOSKOWITZ, KAPNICK, WEBBER, JJ.
Order, Supreme Court, Bronx County (Ruben Franco, J.), entered January 25, 2016, which denied plaintiffs' motion for a default judgment, and granted defendant's motion to compel plaintiffs to accept a late answer, unanimously reversed, on the law, without costs, plaintiffs' motion granted, and defendant's motion denied. The Clerk is directed to enter judgment declaring that, with respect to payments sought by defendant, there is no coverage for the claims identified in the complaint.
Contrary to the motion court, we find that defendant failed to demonstrate a reasonable excuse for its default in answering the complaint, service of which was complete when the Secretary of State was served (Business Corporation Law § 306 ; Associated Imports v. Amiel Publ., 168 A.D.2d 354, 562 N.Y.S.2d 678 [1st Dept.1990], appeal dismissed 77 N.Y.2d 837, 568 N.Y.S.2d 915, 571 N.E.2d 85 [1991] ). Even were we to consider the document submitted by defendant's principal, it would not avail defendant. Neither the principal's bare denial that he ever received notice of the lawsuit before receiving the motion for a default judgment nor defendant's failure to keep current its address on file with the Secretary of State constitutes a reasonable excuse for defendant's failure to timely answer (KPG Inc. v. Salinas Group Ltd., 11 A.D.3d 338, 783 N.Y.S.2d 543 [1st Dept.2004] ; Associated Imports, 168 A.D.2d at 354, 562 N.Y.S.2d 678 ).
Further, defendant acknowledges that the Bronx street address to which an additional copy of the summons and complaint was sent pursuant to CPLR 3215(g)(4)(i) was the actual address of its practice and does not deny that it received the motion for a default judgment at this address. Any failure by plaintiffs to send the additional copy of the summons and complaint by first class mail as the statute directs is not fatal to their motion for a default judgment (Hamilton Pub. Relations v. Scientivity, LLC, 129 A.D.3d 1025, 1026, 12 N.Y.S.3d 234 [2d Dept.2015] ; see also Crespo v. A.D.A. Mgt., 292 A.D.2d 5, 10, 739 N.Y.S.2d 49 [1st Dept.2002] ).