| Gartner v Unified Windows, Doors & Siding, Inc. |
| 2010 NY Slip Op 01759 [71 AD3d 631] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Michele Lippa Gartner et al., Respondents, v UnifiedWindows, Doors and Siding, Inc., Respondent, et al., Defendants, and Hot Siding, Inc.,Appellant. (And Another Title.) |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), fordefendant-respondent.
In an action, inter alia, to recover damages for wrongful death, etc., the defendant HotSiding, Inc., appeals from an order of the Supreme Court, Queens County (Rosengarten, J.),dated December 3, 2008, which denied its motion pursuant to CPLR 5015 (a) (1) and 317 tovacate so much of an order of the same court dated February 17, 2006, as granted that branch ofthe plaintiffs' motion which was for leave to enter a judgment against it on the issue of liabilityupon its default in appearing or answering the complaint.
Ordered that the order dated December 3, 2008, is affirmed, without costs or disbursements.
The Supreme Court providently exercised its discretion in denying that branch of theappellant's motion which was pursuant to CPLR 5015 (a) (1) to vacate its default in appearing oranswering the complaint, since the appellant failed to demonstrate a reasonable excuse for itsthree-year delay in appearing (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67NY2d 138, 141 [1986]; Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Leifer v Pilgreen Corp., 62 AD3d759, 760 [2009]; Segovia v DelconConstr. Corp., 43 AD3d 1143, 1144 [2007]; Canty v Gregory, 37 AD3d 508 [2007]). The appellant's meredenial of receipt of the summons and complaint was insufficient to rebut the presumption ofproper service created by the affidavit of service upon the Secretary of State, and the appellantdid not contend that the address on file with the Secretary of State was incorrect (seeCPLR 311 [a] [1]; Business Corporation Law § 306; Coyle v Mayer Realty Corp., 54 AD3d713 [2008]; Commissioners ofState Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]). Furthermore, the appellant'sinsurance carrier's lengthy delay before defending the action, without more, was insufficient toestablish a reasonable excuse for the default (see Leifer v Pilgreen Corp., 62 AD3d at760; Martinez v D'Alessandro CustomBldrs. & Demolition, Inc., 52 AD3d 786, 787 [2008]; Segovia v Delcon Constr.Corp., 43 AD3d at 1144; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d671, 672 [2006]).[*2]
Similarly, that branch of the appellant's motion whichwas pursuant to CPLR 317 to vacate its default was properly denied, since the appellant failed todemonstrate that it did not receive notice of the action in time to defend (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604, 605 [2007];Commissioners of State Ins. Fund vNobre, Inc., 29 AD3d 511 [2006]; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516[2005]). Dillon, J.P., Miller, Balkin, Leventhal and Austin, JJ., concur.