| Aguilera v Pistilli Constr. & Dev. Corp. |
| 2009 NY Slip Op 04844 [63 AD3d 765] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Maximiliano Ariel Aguilera, Respondent, v PistilliConstruction & Development Corp., Appellant, et al., Defendants. |
—[*1] Lawrence B. Saftler, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Pistilli Construction &Development Corp. appeals (1) from an order of the Supreme Court, Queens County (Cullen, J.),dated October 2, 2007, which denied, with leave to renew, its motion, inter alia, to dismiss thecomplaint insofar as asserted against it for lack of personal jurisdiction and to vacate an order ofthe same court dated April 5, 2006, granting that branch of the plaintiff's unopposed motionwhich was for leave to enter judgment upon its default in appearing or answering, and directed ahearing to determine the validity of the service of process upon it, (2) from an order of the samecourt dated April 11, 2008, which, after the hearing, denied its renewed motion, and (3) from apurported order of the same court dated April 25, 2008.
Ordered that the appeals from the order dated October 2, 2007 and the purported order datedApril 25, 2008 are dismissed; and it is further,
Ordered that the order dated April 11, 2008 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order dated October 2, 2007 must be dismissed, as that order wassuperseded by the order dated April 11, 2008. In addition, the appeal from so much of the orderdated October 2, 2007 as directed a hearing must be dismissed, as no appeal lies as of right froman order which directs a hearing to aid in a disposition of a motion (see Akerman v Akerman, 53 AD3d633 [2008]), and we decline to grant leave as that portion of the order was superseded by theorder dated April 11, 2008. The appeal from the purported order dated April 25, 2008 must bedismissed, as that paper is not appealable either as of right or by permission (see CPLR2219, 5701).
On November 23, 2004 the defendant Pistilli Construction & Development Corp.(hereinafter Pistilli) was the general contractor on a renovation project at a building owned bythe [*2]defendant Tex Development Co., LLC. The plaintiff, whowas working as a carpenter for a subcontractor hired by Pistilli, allegedly was injured when heslipped on debris in a stairway at the premises. The plaintiff commenced this action againstPistilli, among others, seeking to recover damages for common-law negligence and violations ofLabor Law §§ 200, 240 (1) and § 241 (6).
The affidavit of the plaintiff's process server showed that on July 25, 2005 Pistilli was servedwith a summons and complaint by delivery to its general agent at its office located in Astoria.Since no answer was served by Pistilli, the plaintiff sought and obtained leave to enter a defaultjudgment against it.
Pistilli sought to vacate the default pursuant to, inter alia, CPLR 5015 (a) (4), claiming thatservice of process was improper under CPLR 311 (a) (1), and/or pursuant to CPLR 5015 (a) (1)on the ground that its default was excusable. By order dated October 2, 2007, the SupremeCourt, inter alia, directed a hearing to determine whether service of process was effected.Contrary to Pistilli's position, the Supreme Court properly ordered the hearing (see CLE Assoc., Inc. v Greene, 43AD3d 382, 384 [2007]; Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139[1986]).
Pursuant to CPLR 311 (a) (1), service upon a corporation shall be made by delivering thesummons to an officer, director, managing agent, general agent, cashier, or assistant cashier, orto any other agent authorized by appointment or by law to receive service. In addition, servicemay be made upon someone whom the corporation cloaks with authority (see Fashion Page vZurich Ins. Co., 50 NY2d 265 [1980]; Rokicki v 24 Hour Courier Serv., 282 AD2d664, 665 [2001]; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d591 [1993]; Seda v Armory Estates, 138 AD2d 362, 363-364 [1988]).
The Supreme Court correctly determined that it acquired jurisdiction over Pistilli throughproper service of process. The evidence adduced at the hearing established that AngelaRodriguez, to whom the summons and complaint was delivered, was seated behind thecashier/reception desk when the process server entered Pistilli's office, that the process server,who had served Pistilli in the same office and the same manner on at least three prior occasions,read the summons and complaint out loud to Rodriguez, and that Rodriguez informed the processserver that she could accept service on behalf of Pistilli. While Rodriguez claimed that she wasnot employed by Pistilli, the record demonstrates that the company by which she was employedshared offices with Pistilli and was owned by the same principals. She also testified that serviceof process was regularly made by delivering documents to the reception desk for the variousentities that operated out of the same office. Under these circumstances, "the plaintiff's processserver acted reasonably and with due diligence" and it was reasonable for the process server tobelieve that Rodriguez was authorized to accept service on behalf of Pistilli (Rokicki v 24Hour Courier Serv., 282 AD2d at 664; see Fashion Page v Zurich Ins. Co., 50 NY2d265 [1980]; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at591; Seda v Armory Estates, 138 AD2d at 363-364). Furthermore, we decline to disturbany credibility determination made by the hearing court, as its determination is amply supportedby the record (see Lattingtown HarborProp. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006]).
The Supreme Court also properly denied that branch of Pistilli's renewed motion which wasto vacate the default pursuant to CPLR 5015 (a) (1). "A party seeking to vacate a defaultpursuant to CPLR 5015 (a) (1) 'must demonstrate a reasonable excuse for its delay in appearingand answering the complaint and a meritorious defense to the action' " (New York & Presbyt. Hosp. v AmericanHome Assur. Co., 28 AD3d 442 [2006], quoting Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see CPLR 5015 [a] [1]; Koyenov v Twin-D Transp., Inc., 33AD3d 967 [2006]). "The decision as to the setting aside of a default in answering isgenerally left to the sound discretion of the Supreme Court, the exercise of which will generallynot be disturbed if there is support in the record therefor" (Mjahdi v Maguire, 21 AD3d 1067, 1068 [2005], quotingMacMarty, Inc. v Scheller, 201 AD2d 706, 707 [1994]).
Pistilli failed to offer a reasonable excuse for its failure to answer or appear in this action(see Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 592).Contrary [*3]to Pistilli's position, its default was not attributableto its insurance carrier's assertion that it would represent it in this matter, as it was served withthe summons and complaint approximately five months prior to any communication that itreceived from its insurance carrier regarding representation (cf. Perez v Linshar Realty Corp.,259 AD2d 532, 533 [1999]). In view of the lack of a reasonable excuse, it is unnecessary toconsider whether Pistilli sufficiently demonstrated the existence of a meritorious defense (seeMjahdi v Maguire, 21 AD3d at 1068; Krieger v Cohan, 18 AD3d 823 [2005]). Dillon, J.P., Angiolillo,Leventhal and Chambers, JJ., concur.