| Capital Source v AKO Med., P.C. |
| 2013 NY Slip Op 07006 [110 AD3d 1026] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Capital Source, Respondent, v AKO Medical, P.C.,Appellant, et al., Defendant. |
—[*1] Blank & Star, PLLC, Brooklyn, N.Y. (Helene Blank of counsel), forrespondent.
In an action, inter alia, to recover on a promissory note, the defendant AKO Medical,P.C., appeals from an order of the Supreme Court, Kings County (Vaughan, J.), enteredMay 18, 2012, which denied its motion to vacate, inter alia, a judgment of the same courtentered January 11, 2011, upon its default in appearing or answering.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the motion of the defendant AKO Medical, P.C.(hereinafter AKO), which sought to vacate a judgment of the same court entered January11, 2011, upon its default in appearing or answering the complaint, and to vacate theUCC-1 financing statement subsequently filed by the plaintiff memorializing a lien uponAKO's accounts receivable.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1)must demonstrate a reasonable excuse for the default and a potentially meritoriousdefense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141[1986]; Wells Fargo Bank vMalave, 107 AD3d 880, 881 [2013]; CEO Bus. Brokers, Inc. v Alqabili, 105 AD3d 989, 990[2013]). In the instant matter, jurisdiction was obtained over AKO by personal deliveryof copies of the summons and complaint to the Secretary of State. AKO failed toestablish a reasonable excuse for its default, as the mere denial by AKO's president andsole shareholder of receipt of a copy of the summons and complaint "was insufficient torebut the presumption of proper service on the Secretary of State raised by the affidavitof service" (Wassertheil vElburg, LLC, 94 AD3d 753, 753 [2012]; see Hidalgo v Cruiser Taxi Corp., 101 AD3d 950 [2012];Matter of Rockland Bakery, Inc.v B.M. Baking Co., Inc., 83 AD3d 1080 [2011]). Since AKO failed todemonstrate a reasonable excuse for its default, it is unnecessary to determine whether itdemonstrated the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co.v Pietranico, 102 AD3d 724 [2013]; Tribeca Lending Corp. v Correa, 92 AD3d 770 [2012]; Deutsche Bank Natl. Trust Co. vRudman, 80 AD3d 651 [2011]).
Similarly, to the extent that AKO sought relief under CPLR 317, it was not entitledto such relief. "[T]o support a determination granting relief under CPLR 317, a partymust still demonstrate, and the Court must find, that the party 'did not receive actualnotice of the summons [*2]and complaint in time todefend the action' " (Wassertheil v Elburg, LLC, 94 AD3d at 754, quoting 393 Lefferts Partners, LLC v NewYork Ave. at Lefferts, LLC, 68 AD3d 976, 977 [2009]; see CPLR 317).The mere denial of receipt of the summons and complaint is insufficient "to establishlack of actual notice for the purpose of CPLR 317" (Matter of Rockland Bakery, Inc.v B.M. Baking Co., Inc., 83 AD3d at 1081-1082; see Wassertheil v Elburg,LLC, 94 AD3d at 754).
The parties' remaining contentions either are without merit or need not be addressedin light of our determination.
Accordingly, AKO's motion to vacate the judgment and the UCC-1 financingstatement was properly denied. Dillon, J.P., Dickerson, Cohen and Hinds-Radix, JJ.,concur.