| NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc., Inc. |
| 2007 NY Slip Op 08115 [44 AD3d 576] |
| October 30, 2007 |
| Appellate Division, First Department |
| NYCTL 1999-1 Trust et al., Respondents, v 114 TenthAvenue Assoc., Inc., Appellant, and Carlton Capital Corp., Intervenor-Respondent, et al.,Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Ilana A. Eck of counsel), forNYCTL 1999-1 Trust and The Bank of New York, respondents. Michael T. Sucher, Brooklyn, for Carlton Capital Corp., respondent.
Order, Supreme Court, New York County (Saralee Evans, J.), entered September 22, 2005,which, to the extent appealed from, denied the motion of defendant 114 Tenth Avenue Assoc.,Inc. (114 Tenth Avenue) to vacate the judgment of foreclosure and sale and to set aside theresulting foreclosure sale, and order, same court and Justice, entered December 20, 2006, whichdenied 114 Tenth Avenue's motion to renew, unanimously affirmed, without costs.
The court properly denied 114 Tenth Avenue's motion to vacate the judgment of foreclosureand sale. The record establishes that 114 Tenth Avenue was properly served with notice ofplaintiffs' foreclosure action in accordance with Business Corporation Law § 306, and thefailure of 114 Tenth Avenue to receive service of process due to its breach of its responsibility tokeep a current address on file with the Secretary of State does not constitute a reasonable excuseto vacate the judgment (Cedeno v Wimbledon Bldg. Corp., 207 AD2d 297, 298 [1994],lv dismissed 84 NY2d 978 [1994]). 114 Tenth Avenue also otherwise failed to set forth ameritorious defense to the action.
Denial of the motion to renew was appropriate because contrary to 114 Tenth Avenue'sposition, Jones v Flowers (547 US 220 [2006]), decided after submission of the originalmotion, did not constitute a change in the law that would alter the court's prior determination(CPLR 2221 [e] [2]). The instant circumstances are readily distinguishable from Jones,which concerned the sufficiency of notice provided to an individual by a state government of atax delinquency and of an impending tax sale of the individual's property, whereas here, processwas served by a [*2]private actor upon 114 Tenth Avenuepursuant to Business Corporation Law § 306. The holding in Jones does notaddress the constitutionality of service of process on the Secretary of State as the designatedagent of a corporation, nor is there any reason to believe that such service is unconstitutional.Furthermore, the new facts submitted by 114 Tenth Avenue in support of its motion to renewwere readily available at the time the prior motion was made and 114 Tenth Avenue failed toprovide a reasonable justification for failing to present these facts in support of its initial motion(CPLR 2221 [e] [3]; Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [2001]).
We have considered 114 Tenth Avenue's remaining contentions and find them unavailing.Concur—Lippman, P.J., Andrias, Williams, Buckley and Kavanagh, JJ.