| Brightly v Florida N., Inc. |
| 2008 NY Slip Op 06920 [54 AD3d 1127] |
| September 18, 2008 |
| Appellate Division, Third Department |
| Lisa Brightly, Respondent, v Florida North, Inc.,Appellant. |
—[*1] Tal G. Rappleyea, Valatie, for respondent.
Rose, J. Appeal from an order of the Supreme Court (Donohue, J.), entered July 27, 2007 inColumbia County, which denied defendant's motion to vacate a default judgment entered againstit.
In May 2003, plaintiff contracted with defendant to install an in-ground pool. Claiming thatdefendant never finished the installation despite her payment in full, plaintiff commenced thisaction for breach of contract. Delivery of the summons and complaint on defendant wascompleted by service on the Secretary of State on December 16, 2005 pursuant to BusinessCorporation Law § 306. Plaintiff's attorney also mailed a copy of the summons andcomplaint to defendant at "125 Charlesten Industrial Park Lane, Esperance, NY" on December23, 2005, the same address on file with the Secretary of State. This was defendant's currentaddress. When defendant failed to appear in the action, plaintiff moved for a default judgment,which motion was granted on March 7, 2006. The default judgment was entered June 27, 2006.About nine months later defendant moved, pursuant to CPLR 317, to vacate said judgmentclaiming that it never received a copy of the summons and complaint and that it had ameritorious defense to said action. Supreme Court denied the motion and defendant now appeals.
To vacate a default judgment under CPLR 317, it is not necessary for the defendant todemonstrate a reasonable excuse for the default (see Gardner v Another Phyllis's, 216AD2d 620, 620 [1995]; Winters v Albany Executive House Apts., 102 AD2d 985, 985[1984]). Rather, "the defendant need only show that [it] did not personally receive notice of thepending lawsuit [*2]in time to defend and that [it] has ameritorious defense" (Winters v Albany Executive House Apts., 102 AD2d at 985;accord Bank Leumi Trust Co. of N.Y. v John Malasky, Inc., 108 AD2d 1089, 1090[1985]). A defendant's uncorroborated denial of timely receipt of such notice by mail, however,is insufficient to rebut the presumption that a properly mailed letter was received by theaddressee (see Trini Realty Corp. vFulton Ctr. LLC, 53 AD3d 479, 480 [2008]; Facey v Heyward, 244 AD2d 452,452 [1997]).
While delivery to the Secretary of State is not considered personal delivery (see Pabone vJon-Bar Enters. Corp., 140 AD2d 872, 873 [1988]), and both defendant's office manager andpresident averred that they never received the subject summons and complaint in the mail,defendant was clearly in possession of same as of June 5, 2006, as was ultimately acknowledgedby defendant's president and its attorney, and said receipt came "via mail." No furtherexplanation was offered as to how defendant came into said possession at that point and notbefore, although the burden was on it to do so (see Metropolitan Steel Indus. v RosensheinHub Dev. Corp., 257 AD2d 422 [1999]). In view of the conflicting statements made bydefendant's president, we cannot say that Supreme Court abused it discretion by finding thatdefendant failed to meet its burden of establishing lack of timely notice (see Anchor Sav.Bank v Alpha Developers, 143 AD2d 711, 713 [1988], lv dismissed 73 NY2d 907[1989]). Accordingly, Supreme Court properly denied defendant's motion. Given this result, it isnot necessary to determine whether defendant had a meritorious defense to the action.
Peters, J.P., Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.