| Sussman v Jo-Sta Realty Corp. |
| 2012 NY Slip Op 06796 [99 AD3d 787] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Raymond S. Sussman, Respondent, v Jo-Sta RealtyCorporation, Appellant. |
—[*1] Elliott S. Martin, Brooklyn, N.Y. (Banjamin M. Oxenburg of counsel), forrespondent.
In an action, inter alia, for the partition and sale of real property, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Rothenberg,J.), dated June 23, 2011, as denied those branches of its motion which were pursuant to CPLR5015 (a) (1) and (3) to vacate an interlocutory judgment of partition and sale of the same courtentered November 30, 2000, upon its default in appearing or answering.
Ordered that the order is affirmed insofar as appealed from, with costs.
A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritoriousdefense to the action (see Clover M.Barrett, P.C. v Gordon, 90 AD3d 973 [2011]; Development Strategies Co., LLC, Profit Sharing Plan v Astoria Equities,Inc., 71 AD3d 628 [2010]). The motion must be "made within one year after service of acopy of the judgment or order with written notice of its entry upon the moving party" (CPLR5015 [a] [1]). Here, the defendant's motion to vacate its default pursuant to CPLR 5015 (a) (1)was untimely since it was not made within one year after a copy of the interlocutory judgment ofpartition and sale (hereinafter the judgment), with notice of its entry, was served upon it (see US Natl. Bank Assn. v Melton, 90AD3d 742, 744 [2011]; Matter ofWeintrob v Weintrob, 87 AD3d 749, 750 [2011]). In any event, the defendant failed toestablish a reasonable excuse for its default. "If the [defendant] failed to actually receive a copyof the summons and complaint from the Secretary of State due to a change of address, it was dueto its own fault as it failed to keep the Secretary of State advised [of] its current address for theforwarding of process" (Town HouseSt., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 AD3d 893, 894 [2006];see Castle v Avanti, Ltd., 86 AD3d531 [2011]; Yellow Book of N.Y.,Inc. v Weiss, 44 AD3d 755, 756 [2007]; Santiago v Sansue Realty Corp., 243AD2d 622, 623 [1997]). Accordingly, the Supreme Court properly denied that branch of thedefendant's motion which was to vacate the judgment pursuant to CPLR 5015 (a) (1).
The Supreme Court also properly denied that branch of the defendant's motion which was tovacate the judgment pursuant to CPLR 5015 (a) (3), as the defendant failed to establish that thejudgment was procured as a result of fraud, misrepresentation, or other improper conduct (see Ferdico v Zweig, 82 AD3d1151, 1153 [2011]). Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.