Service on a limited liability company by delivery of the pleadings to the Secretary of State does not constitute personal delivery (seeAcqua Capital, LLC v. 510 W. Boston Post Rd., LLC, 164 A.D.3d 1195, 1196, 84 N.Y.S.3d 180 ). "The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" ( Goldfarb v. Zhukov, 145 A.D.3d 757, 758, 43 N.Y.S.3d 135 ; seeMoran v. Grand Slam Ventures, LLC, 160 A.D.3d 944, 945, 75 N.Y.S.3d 252 ; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 726, 32 N.Y.S.3d 198 ). Here, the Wartburg defendants failed to establish lack of actual notice of the action in time to defend for purposes of CPLR 317.
Service on a limited liability company by delivery of the pleadings to the Secretary of State does not constitute personal delivery (see Acqua Capital, LLC v 510 W. Boston Post Rd., LLC, 164 A.D.3d 1195, 1196). "The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 A.D.3d 757, 758; see Moran v Grand Slam Ventures, LLC, 160 A.D.3d 944, 945; Xio Lou Li v China Cheung Gee Realty, LLC, 139 A.D.3d 724, 726). Here, the Wartburg defendants failed to establish lack of actual notice of the action in time to defend for purposes of CPLR 317.
Service on a corporation through delivery of process to the Secretary of State is not "personal delivery" to the corporation ( CPLR 317 ; seeEugene 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 (seeXiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 726, 32 N.Y.S.3d 198 ; Sussman v. JoโSta 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.
"CPLR 317 permits a defendant who has been served with a summons other than by personal delivery 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 meritorious defense" (Xiao Lou Li v China Cheung Gee Realty, LLC, 139 A.D.3d 724, 724-725). Here, the Supreme Court should have denied the defendant's motion to vacate so much of the 2021 judgment as was in favor of the plaintiff and against the defendant and for an extension of time to answer the complaint. The defendant's unsubstantiated denial of receipt of the summons and complaint through the Secretary of State was insufficient to establish lack of actual notice of the action in time to defend (see id. at 726).
Finger Lake nevertheless contends that, inasmuch as the summons and complaint were never served on it by personal delivery, it did not receive notice of the lawsuit in time to defend against it and, as it has a meritorious defense, it is entitled to vacatur of the default pursuant to CPLR 317 (seeEugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141โ142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). To that end, " CPLR 317 permits a defendant who has been served with a summons other than by personal delivery 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 meritorious defense" ( Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 724โ725, 32 N.Y.S.3d 198 [2016] ). In order to obtain relief pursuant to CPLR 317, however, the moving party must first demonstrate that it "did not receive actual notice of the summons and complaint in time to defend the action" ( Capital Source v. AKO Med., P.C., 110 A.D.3d 1026, 1027, 973 N.Y.S.2d 794 [2013] [internal quotation marks and citations omitted] ).
The LLC failed to rebut the presumption of proper service created by the executed affidavits of service upon the Secretary of State (seeDove v. 143 Sch. St. Realty Corp., 172 A.D.3d 1315, 1317, 101 N.Y.S.3d 461 ; Lange v. Fox Run Homeowners Assn., Inc., 127 A.D.3d 823, 824, 7 N.Y.S.3d 334 ). Further, the LLC's request for relief pursuant to CPLR 317 fails because the LLC failed to provide sufficient evidence that it did not receive actual notice of the summons in time to defend the action (seeXiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 726, 32 N.Y.S.3d 198 ). The LLC also failed to demonstrate its entitlement to relief pursuant to CPLR 5015(a)(1), as it failed to demonstrate a reasonable excuse for its default (seeXiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d at 726, 32 N.Y.S.3d 198 ).
Greenville appeals, and we affirm. CPLR 317 permits a defendant who has been served with a summons other than by personal delivery 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 (seeEugene 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 ; Xiao Lou Li v. China Cheung Gee Realty, LLC , 139 A.D.3d 724, 724โ725 ). "[S]ervice on a corporation through delivery of process to the Secretary of State is not โpersonal deliveryโ to the corporation"
Furthermore, there is no allegation contained in this affidavit that the defendant, in fact, never received the summons and complaint, nor is there any detail as to where the defendant moved to and when, nor whether the defendant made any efforts to update its address on file with the Secretary of State. Under these circumstances, the defendant did not demonstrate lack of actual notice of the action (seeMoran v. Grand Slam Ventures, LLC, 160 A.D.3d at 945, 75 N.Y.S.3d 252 ; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 725โ726, 32 N.Y.S.3d 198 ).
Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam), failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of Grand Slam's managing member averring that Grand Slam moved its office to an unspecified address in 2010, five years before the action was commenced, and failed to update its address on file with the Secretary of State, was not sufficiently detailed or substantiated to establish lack of actual notice of the action (seeXiao Lou Li v China Cheung Gee Realty, LLC, 139 A.D.3d 724, 725โ726, 32 N.Y.S.3d 198 ; Unifiller Sys., Inc. v. Melita Corp., 127 A.D.3d 961, 962, 7 N.Y.S.3d 396 ; cf.Dalton v. Noah Constr. & Bldrs., Inc., 136 A.D.3d 730, 731, 24 N.Y.S.3d 739 ; Ferguson v. Shu Ham Lam, 59 A.D.3d 387, 388, 872 N.Y.S.2d 529 ). In light of the foregoing, it is unnecessary to determine whether Grand Slam demonstrated the existence of a potentially meritorious defense (seeXiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d at 726, 32 N.Y.S.3d 198 ).
Corp., 99 A.D.3d 787, 788, 951 N.Y.S.2d 683 ; see Clover M. Barrett, P.C. v. Gordon, 90 A.D.3d 973, 936 N.Y.S.2d 217 ). Here, the defendant Second Home Social Adult Day Care Center of 86th Street, LLC (hereinafter the defendant), did not contend that the address that it had on file with the Secretary of State was incorrect and, therefore, its 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 ยง 303[a] ; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 725, 32 N.Y.S.3d 198 ; Hamilton Pub. Relations v. Scientivity, LLC, 129 A.D.3d 1025, 12 N.Y.S.3d 234 ; see also Ultimate One Distrib. Corp. v. 2900 Stillwell Ave., LLC, 140 A.D.3d 1054, 36 N.Y.S.3d 142 ). Although the defendant did not cite to CPLR 317 in support of its motion, under the circumstances of this case, this Court may also treat it as a motion made pursuant to CPLR 317 as a basis for vacating the default (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., Inc., 67 N.Y.2d 138, 142โ143, 501 N.Y.S.2d 8, 492 N.E.2d 116 ).