Opinion
Index No.: 16869/2016
03-16-2020
Boris ZATS and Marina Shafir Zats, Plaintiffs, v. Arkadi KATSELNICK a/k/a Arkkatselnick and 139 Cobb Road, LLC, Defendants.
Attorney for plaintiff: David Landfair, Esq. Kopelevich & Feldsherova, PC 241 37th Street, Suite B439 Brooklyn, NY 11232 Attorney for defendant: Jeffrey J. Rea, Esq. Rea & Associates, LLC 225 Broadway, Suite 1515 New York, NY 10007
Attorney for plaintiff:
David Landfair, Esq.
Kopelevich & Feldsherova, PC
241 37th Street, Suite B439
Brooklyn, NY 11232
Attorney for defendant:
Jeffrey J. Rea, Esq.
Rea & Associates, LLC
225 Broadway, Suite 1515
New York, NY 10007
Odessa Kennedy, J.
The Court hereby sua sponte vacates its order dated January 27, 2020 and finds as follows:
In an action arising from an alleged breach of a lease, defendants Katselnick and 139 Cobb Road, LLC(hereinafter "the LLC") move pursuant to CPLR § 5015(a) and CPLR § 317 and to vacate default judgements they contend was obtained against them and for leave to interpose an answer pursuant to CPLR § 3012.
Plaintiff, however, never sought a default judgment against Katselnick, rendering his motion to vacate moot. Plaintiff obtained a default judgment against the LLC in the sum of $43,710 on May 16, 2017 and served the judgement on the LLC on May 22, 2017 via the Secretary of State. On August 5, 2019, the LLC moved to vacate the judgment.
To vacate a default judgment under CPLR § 5015(a) a defendant must show both a reasonable excuse for the default and a potentially meritorious defense. (See, Li Fen Li v. Cannon Co., Inc. , 155 AD3d 858 [2d Dept 2017] ). Defendant Katselnick states that he is a member of the LLC, and did not receive notice of the Summons and Complaint because it was served on the LLC via the Secretary of State "in late 2016" at an outdated address on file with the Secretary. He explains the LLC's address was not updated with the Secretary of State on the date of service because unbeknownst to him, the office manager of the LLC failed to update the address before leaving the company in 2013. Since the LLC did not receive the summons and complaint, defendant argues that the default was excusable, warrantying vacatur.
In opposition, plaintiff contends defendant had the duty to maintain an accurate address on file with the Secretary of State, and that defendant's non-receipt of the summons and complaint was the result of its violation of duty to update its address. Plaintiff argues that defendant's failure to keep an accurate address on file with the Secretary, does not constitute a reasonable excuse for its default.
Under CPLR 5015, "there is no per se rule that a corporation served through the Secretary which failed to update its address on file there cannot demonstrate an excusable default." Rather, the determination of whether a default was reasonable pursuant to CPLR 5015, depends on factors including the length of time during which defendant did not update its address. (See Eugene Di Lorenzo Inc v. A.C. Dutton Lumber Co. 108 AD2d 1004 [1986] ); Dwyer Agency of Mahopac, LLC v. Dring Holding Corp. , 164 AD3d 1214 [2d Dept, 2018] ; Li Fen Li v. Cannon Co., Inc. 155 AD3d 858 [2d Dept, 2017] ).
Here, defendant fails to specify the date that the LLC relocated from the address registered with the Secretary of State, but asserts it was "many years" before plaintiff's alleged service of process "in late 2016," or at least as of 2013, when its outgoing manger should have but failed to update the address. Thus, defendant admits that at minimum for three years before plaintiff's service of process, it kept an inaccurate address on file with the Secretary of State. Defendant's years of neglect to update its address does not constitute a reasonable excuse for default, and warrants denial of the motion pursuant to CPLR 5015(a). (See, Bing Fang Qiu v. Cameo Owners Corp. , 172 AD3d 802 [2d Dept 2019] )
A defendant however is not required to show a reasonable excuse for its default when moving to vacate judgement pursuant to CPLR 317. (See, Eugene Di Lorenzo, Inc. v. A. C. Dutton Lbr. Co. , 67 NY2d 138 [1986] ; Bing Fang Qiu at 803). Under CPLR 317, a person served with a summons other than by personal delivery who does not appear may be allowed to defend the action within one year after she obtains knowledge of entry of the judgment upon a finding that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense. (See, Benchmark Farm, Inc. v. Red Horse Farm, LLC , 162 AD3d 836, 837 [2d Dept 2018] ).
In an August 5, 2019 affidavit, Mr. Katselnick's states he discovered the default from the Court's records "a short while ago," seemingly within the one year requirement of CPLR 317 as the motion was served August 6, 2019. In opposition, plaintiff argues that defendant must have become aware of the default by November of 2018, when the City Marshal seized money from the LLC's bank account pursuant to the default judgement. As the record is devoid of evidence that defendant knew of its default before November of 2018, the court finds that the instant motion to vacate is within one year of defendant's discovery of the default, thus timely under CPLR 317.
Despite lack of evidence that defendant knew of its default beyond a year before serving the instant motion, had there been evidence defendant moved to vacate beyond the one year restriction set forth in CPLR 317, the court would have discretion to extend defendant's time in light of the well settled public policy in favor of resolving cases on the merits and defendant's short delay in moving to vacate the judgment. (See, Girardo v. 99-27 Realty, LLC , 62 AD3d 659 [2d Dept 2009] ); Stern v. Warren George, Inc. , 82 AD3d 873 [2d Dept 2011] ; see also, CPLR 2004 ). The courts have further broad discretion to vacate defaults where the moving party's claim or defense is meritorious absent evidence of willful default or prejudice to the other party, (see , Cleary v. East Syracuse-Minoa Cent. School Dist. , 248 AD2d 1005 [4th Dept 1998] ; Lichtman v. Sears, Roebuck & Co. , 236 AD2d 373 [2d Dept 1996] ).
In the case at bar, plaintiff does not allege the delay was willful or resulted in prejudice. Furthermore, defendant has demonstrated the existence of a potentially meritorious defense as required under CPLR 317. Defendant claims it vacated the premises on the date specified in the lease modification but was unable to remove all possessions until the following day because plaintiff's manager refused to let defendant use the elevator to remove its property. Defendant contends plaintiff extended the vacatur date one day as defendant's failure to vacate the day prior was the result of defendant's lack of access to an elevator. In opposition, plaintiff denies extending the date of vacatur and alleges defendant breached numerous provisions of the lease modification.
The court finds defendant has sets forth facts sufficiently establishing a meritorious defense. (see , Leogrande v. Glass , 106 AD2d 431 [2d Dept 1984], holding the determination of a meritorious defense is within the sound discretion of the trial court). Defendant 139 Cobb Road's LLC's motion to vacate the default judgment is granted pursuant to CPLR 317 and the court's inherent power not limited by statute to relieve a party from a default judgment in furtherance of justice. (See, Greenburgh v. Schroer , 55 AD2d 602 [2d Dept 1976] ).
Here, as the $43,710 judgment was obtained against a defendant who lacked knowledge of the suit, it must be vacated to prevent injustice as defendant has a meritorious defense, moved to vacate shortly after its discovery of the default, and the lack of prejudice of the delay to the plaintiff. The default judgment against defendant 139 Cobb Road LLC is vacated. Defendants' time to interpose an answer is 30 days from the entry of this order.