Opinion
12-29-2016
STILLWELL CAFÉ, INC., et al., Plaintiffs–Appellants, v. 1680 EASTCHESTER REALTY CORP., Defendant–Respondent.
Trivella & Forte, LLP, White Plains (Arthur J. Muller III of counsel), for appellants. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Trivella & Forte, LLP, White Plains (Arthur J. Muller III of counsel), for appellants.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 21, 2015, which granted defendant's motion to vacate the default judgment entered against it after inquest, and granted leave to serve an answer, unanimously affirmed, without costs.
Defendant is not entitled to relief under CPLR 5015(a). Defendant failed to demonstrate a reasonable excuse for its default even though there has been extensive litigation between the parties over the premises, and the person (Michael Verini) who was defendant's chief executive officer, principal executive officer, and registered agent, passed away around the time the default occurred, because there is no explanation as to what prevented defendant from updating its entity information with the Secretary of State (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 [1986]; Diggs v. Karen Manor Assoc., LLC, 117 A.D.3d 401, 402–403, 985 N.Y.S.2d 23 [1st Dept.2014] ; J & S Constr. of NY, Inc. v. 321 Bowery LLC, 39 A.D.3d 391, 835 N.Y.S.2d 65 [1st Dept.2007] ).
However, we find that vacatur of the judgment is appropriate under CPLR 317. Defendant established that it did not receive actual notice of process in time to defend the action by submitting the affidavit of Thomas Verini, Michael's son who was involved in the affairs of defendant (see Arabesque Recs.
LLC v. Capacity LLC, 45 A.D.3d 404, 846 N.Y.S.2d 43 [1st Dept.2007] ). Defendant has also demonstrated that it has a meritorious defense, as the Appellate Term has determined that defendant made a sufficient showing of a meritorious claim for nonpayment of rent by plaintiffs (32 Misc.3d 128[A], 2011 N.Y. Slip Op. 51253[U], 2011 WL 2652550 [App.Term, 1st Dept.2011] ), and plaintiffs make no challenge to this finding on the appeal.
MAZZARELLI, J.P., SWEENY, RICHTER, MANZANET–DANIELS, FEINMAN, JJ., concur.