Opinion
Index No. CV-741532-21/KI Motion Cal. Nos. 34 35 Motion Seq. Nos. 1 2
08-22-2024
SUMMER P.T., PC., A/A/O CORNUT, ZAKIYA, Plaintiff, v. AMERICAN ACCESS CASUALTY COMPANY Defendant.
Unpublished Opinion
DECISION AND ORDER
Javier Ortiz, Judge
Recitation, as required by CPLR § 2219(a), of the papers considered in review of these Motions:
Papers:
P's Affidavit of Service . ... ... .. . ..... .. .. . .... . ... . 2
P's Notice of Motion For Default Judgment ... . .. 3
P's Affirmation in Support . .... . .... . .. . . ... .. ..... . .4
P's Exhibit .... . ..... . .. .. ... .. .. ....... ... .. .. .... ... 5, 14
D's Notice of Cross-Motion to Dismiss .. . .. . .. ... . 8
D's Affirmations/ Affidavits in Support .... .. . ..... 9-10
D's Exhibits .. . . ......... ...... . ..... . .. . ... .... . ..... 11, 16
P·s Opp to D·s Motion . .. ..... . .... . . .. .. . .......... . 13
D's Reply . ... .. . .. . ... . ..... . .. . .. . .. . ... . . .. ... . . .. .. 15
Upon the foregoing cited papers, and after oral arguments, the Decision/Order on Plaintiffs 1otion for Default Judgment and Defendant's Cross-Motion to Dismiss the Complaint, are decided as follows:
Plaintiffs motion is GRA TED and Defendant's cross-motion is DE IED.
Defendant was served with the Summons and Complaint on September 10, 2021. Service was consistent with requirements for an out-of-state corporation under BSC § 307(b). (See YSCEF No. 2.) Per Plaintiffs affidavit of service, the summons and complaint were delivered via personal service to the New York secretary of state and by certified mail with return receipt requested to Defendant's corporate address in Illinois. This squares with the requirements of BSC § 307(b). (See generally Flick v. Stewart-Warner Corp., 76 N.Y.2d 50, 55-57 [1990] (discussing requirements of BSC § 307).)
In its papers, Defendant claims that Plaintiff did not provide an affidavit of service and thus service was not proper. However, that is not consistent with the record here. (See YSCEF No. 2.) Nowhere in its papers does Defendant claim that it did not receive the certified mailing of the summons and complaint.
In any event, "strict compliance with the procedures of Business Corporation Law' 307 is required to effect service on an unauthorized foreign corporation ....” (Flick, 76 N.Y.2d at 57.) The record shows that strict compliance with such procedures occurred here.
CPLR 320 requires that the defendant's "appearance shall be made within thirty days after service is complete." Accordingly. Defendant's time to appear in this action expired on October 10, 2021. Defendant filed its cross-motion to dismiss nearly a year later on September 13, 2022 and it filed an answer on July 12, 2024, weeks after these two motions were heard by the Court. Both of Defendant's filings were untimely.
"A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action .... (Moriano v. Provident N.Y. Bancorp, 71 A.D.3d 747 [2d Dept 2010].) While Defendant wholly satisfies its burden of demonstrating a meritorious defense, including by showing that the insurance policy at issue did not insure the vehicle involved in the accident. Defendant makes no attempt to provide a reasonable excuse for its default. Nowhere in its papers does Defendant assert why it failed to timely respond aside from generalized complaints that service was improper, which as discussed above, appear to overlook the affidavit of service that Defendant filed. The Court cannot excuse default on grounds of a meritorious defense alone. "Since the defendant failed to . . . provide a reasonable excuse for its failure to timely answer the complaint, there is no need to consider whether the defendant demonstrated a potentially meritorious defense to the action. (Funding NY. LLC v. 1237 Dean St. Corp., 227 A.D.3d 1050. 1052 [2d Dept. 2024].)
Thus. Plaintiff's motion is GRANTED and Defendant's cross-motion is DENIED.
This constitutes the Decision and Order of the Court.