| Centennial El. Indus., Inc. v Ninety-Five Madison Corp. |
| 2011 NY Slip Op 09079 [90 AD3d 689] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Centennial Elevator Industries, Inc.,Respondent, v Ninety-Five Madison Corp. et al., Appellants. |
—[*1] L. Blake Morris, Brooklyn, N.Y. (Colin T. McLaughlin of counsel), for respondent.
In an action to recover on an account stated, the defendants appeal from an order of theSupreme Court, Queens County (Agate, J.), entered July 16, 2010, which denied their motion (a)to vacate a judgment of the same court entered October 20, 2009, which, upon their default inanswering the complaint or appearing in the action, was in favor of the plaintiff and against themin the total sum of $109,335.88, and (b) to direct the restitution of funds levied from the accountof nonparty Ninety-Five Madison Company.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof denying that branch of the defendants' motion which was to vacate thedefault judgment insofar as entered against the defendant Ninety-Five Madison Corp. andsubstituting therefor a provision granting that branch of the defendants' motion; as so modified,the order is affirmed, without costs or disbursements.
The determination of whether to vacate a default judgment rests within the sound discretionof the Supreme Court, although a disposition on the merits is favored (see Gerdes v Canales, 74 AD3d1017, 1017 [2010]; see also Hann v Morrison, 247 AD2d 706, 707 [1998]). Pursuantto CPLR 317, a person "served with a summons other than by personal delivery to him [or her] orto his [or her] agent . . . who does not appear may be allowed to defend the actionwithin one year after he [or she] obtains knowledge of entry of the judgment . . .upon a finding of the court that he [or she] did not personally receive notice of the summons intime to defend and has a meritorious defense" (CPLR 317). In addition, "[t]he court whichrendered a judgment or order may relieve a party from it upon such terms as may be just, onmotion . . . upon the ground of . . . excusable default" (CPLR 5015 [a][1]). A defendant seeking to vacate a default in appearing on the ground of excusable neglectmust show both a reasonable excuse for the default and the existence of a potentially meritoriousdefense (see Gerdes v Canales, 74 AD3d at 1017).
Here, the Supreme Court correctly denied that branch of the defendants' motion which was tovacate the default judgment insofar as entered against the defendant Rita Sklar. The [*2]defendants failed to demonstrate that Sklar did not personallyreceive notice of the action in time to defend, as the affidavit of service attesting that thesummons and complaint were mailed to Sklar's correct business address created a presumption ofproper mailing and of receipt, and Sklar's bare allegation that she did not receive the summonsand complaint was not sufficient to overcome the presumption of proper mailing (see Cavalry Portfolio Servs., LLC vReisman, 55 AD3d 524, 525 [2008]). Additionally, as to that branch of the motionwhich was to vacate Sklar's default upon the ground of excusable default, the defendants failed todemonstrate Sklar's entitlement to vacatur because they provided no excuse for the default otherthan to claim conclusorily that Sklar did not actually receive the summons and complaint. Asthere was no evidence of a reasonable excuse, we need not consider the potential merit of Sklar'sdefense to the action (see Gerdes v Canales, 74 AD3d at 1017; Assael v 15 Broad St., LLC, 71 AD3d802, 803 [2010]).
However, the Supreme Court improvidently exercised its discretion in denying that branch ofthe defendants' motion which was to vacate the default judgment insofar as entered against thedefendant Ninety-Five Madison Corp. (hereinafter the Corporation). The record reflects that it isundisputed that the Corporation was dissolved in 1983. Thereafter, the Corporation did not holditself out as doing business, did not conduct business with the plaintiff, and did not have actualnotice of this action. Thus, although a dissolved corporation is capable of being sued and ofbeing served through substituted service upon the Secretary of State (see BusinessCorporation Law § 1006 [a] [4]), under the circumstances of this case, the Corporation wasentitled to vacatur of the default judgment against it (see CPLR 317; Kavourias v BigSix Pharm., 262 AD2d 456 [1999]).
The defendants' remaining contentions are without merit. Skelos, J.P., Leventhal, Belen andRoman, JJ., concur.