| Wassertheil v Elburg, LLC |
| 2012 NY Slip Op 02484 [94 AD3d 753] |
| April 3, 2012 |
| Appellate Division, Second Department |
| David Wassertheil, Appellant, v Elburg, LLC, Defendant,and Encore Development, Inc., Respondent. |
—[*1] Downing & Peck, P.C., New York, N.Y. (Marguerite D. Peck of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Kings County (Spodek, J.), dated August 23, 2010, as denied hismotion pursuant to CPLR 3215 for leave to enter a judgment on the issue of liability against thedefendant Encore Development, Inc., upon that defendant's default in appearing and answeringthe complaint, and granted that defendant leave to serve and file a late answer.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, the plaintiff's motion pursuant to CPLR 3215 for leave to enter a judgment on theissue of liability against the defendant Encore Development, Inc., upon that defendant's default inappearing and answering the complaint, is granted, and the matter is remitted to the SupremeCourt, Kings County, for an inquest on the issue of damages.
The Supreme Court improvidently exercised its discretion in denying the plaintiff's motionfor leave to enter a judgment on the issue of liability against the defendant Encore Development,Inc. (hereinafter Encore), upon that defendant's default in appearing and answering the complaint.
In support of his motion, the plaintiff submitted proof of service of the summons and thecomplaint, the facts constituting the claim, and the default (see CPLR 3215 [f]; C&H Import & Export, Inc. v MNAGlobal, Inc., 79 AD3d 784 [2010]; Landaverde v Wroth, 260 AD2d 448 [1999]).
To successfully oppose a motion for leave to enter a default judgment based on the failure toappear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delayand the existence of a potentially meritorious defense (see CPLR 5015 [a] [1];Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; 2261 Palmer Ave. Corp. v Malick, 91AD3d 853 [2012]; Kouzios vDery, 57 AD3d 949 [2008]; Baldwin v Mateogarcia, 57 AD3d 594 [2008]). Here, the meredenial by Encore's shareholder of service of the summons and the complaint was insufficient torebut the presumption of proper service on the Secretary of State raised by the affidavit of service(see Business Corporation Law § 306 [b] [1]; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d1080, 1081-1082 [2011]; Thas vDayrich Trading, Inc., 78 AD3d 1163, 1164 [2010]; May v Hartsdale Manor Owners Corp., 73 AD3d 713 [2010]).[*2]
Similarly, Encore was not entitled to relief under CPLR317. Pursuant to CPLR 317, when, as here, process is served upon a party by some method otherthan personal delivery, such party need not show a reasonable excuse for the delay (seeEugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141-142), and "may be allowedto defend the action" by seeking to vacate a default judgment within one year after learning of thejudgment upon demonstrating a potentially meritorious defense (CPLR 317; see Matter ofRockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d at 1081). However, to support adetermination granting relief under CPLR 317, a party must still demonstrate, and the Court mustfind, that the party "did not receive actual notice of the summons and complaint in time to defendthe action" (393 Lefferts Partners, LLCv New York Ave. at Lefferts, LLC, 68 AD3d 976, 977 [2009]; see CPLR 317;Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 142; Clover M. Barrett, P.C. v Gordon, 90AD3d 973 [2011]; Marinoff v NattyRealty Corp., 17 AD3d 412, 413 [2005]). The mere denial of receipt of the summonsand complaint is also insufficient "to establish lack of actual notice for the purpose of CPLR317" (Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d at 1081-1082;see Levine v Forgotson's Cent. Auto &Elec., Inc., 41 AD3d 552 [2007]).
Accordingly, it was an improvident exercise of discretion to excuse the default of Encore,and to grant Encore leave to serve and file a late answer, especially in the absence of a crossmotion for such relief (see CPLR 2215; May v Hartsdale Manor Owners Corp., 73 AD3d 713 [2010]; Hosten v Oladapo, 44 AD3d 1006[2007]; Giovanelli v Rivera, 23AD3d 616, 616 [2005]; Zino v JoabTaxi, Inc., 20 AD3d 521, 522 [2005]). Rivera, J.P., Leventhal, Roman and Cohen, JJ.,concur.