| 393 Lefferts Partners, LLC v New York Ave. at Lefferts,LLC |
| 2009 NY Slip Op 09459 [68 AD3d 976] |
| December 15, 2009 |
| Appellate Division, Second Department |
| 393 Lefferts Partners, LLC, Respondent, v New YorkAvenue at Lefferts, LLC, Appellant, et al., Defendants. |
—[*1] Konner Teitelbaum & Gallagher, New York, N.Y. (Michael A. Gould of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant New York Avenue at Lefferts, LLC,appeals from an order of the Supreme Court, Kings County (Martin, J.), dated September 15,2008, which denied its motion, inter alia, pursuant to CPLR 5015 (a) (1) and 317 to vacate itsdefault in appearing or answering the complaint and for leave to serve an answer.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default in answering must demonstrate a reasonable excusefor the default and the existence of a meritorious defense (see CPLR 5015 [a] [1];Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray vB. R. Trucking Co., 59 NY2d 649, 650 [1983]; Harris v City of New York, 30 AD3d461, 463-464 [2006]; Orangetown Policemen's Benevolent Assn. v Town of Orangetown,18 AD3d 841 [2005]). The appellant submitted an affidavit of service that stated that it wasserved on August 10, 2007, pursuant to Limited Liability Company Law § 303, by serviceupon the Secretary of State. The appellant also submitted a certificate of service and returnreceipt showing that the Secretary of State delivered the summons and complaint to theappellant's designated address by certified mail, return receipt requested, but the return receiptwas not dated and was signed by a person who was not employed by the appellant. JosephArtusa, one of the appellant's managing members, stated in an affidavit that he was out of theoffice "on many days" in August and September of 2007 and did not see the summons andcomplaint on his desk until late September, when the time to answer it had expired. Thisstatement does not provide a reasonable excuse for the appellant's default. Moreover, theSupreme Court providently exercised its discretion in determining that the appellant was notentitled to relief pursuant to CPLR 317, since it failed to demonstrate that it did not receiveactual notice of the summons and complaint in time to defend the action (see CPLR 317;Taieb v Hilton Hotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp.,32 AD3d 454 [2006]; Brockington v Brookfield Dev. Corp., 308 AD2d 498 [2003]).In addition, the appellant failed to demonstrate a meritorious defense to the action.
The appellant's remaining contention is without merit. Prudenti, P.J., Covello, Lott andSgroi, JJ., concur.