| Cruz v Keter Residence, LLC |
| 2014 NY Slip Op 01575 [115 AD3d 700] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Jose Dela Cruz, Appellant, v Keter Residence,LLC, Respondent. |
—[*1] Ronald P. Berman, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Sweeney, J.), dated August 14, 2013, whichdenied his motion pursuant to CPLR 3215 for leave to enter a judgment on the issue ofliability against the defendant, upon its failure to appear or answer the complaint, andgranted the defendant's cross motion for leave to serve and file a late answer.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment on theissue of liability against the defendant is granted, the defendant's cross motion for leaveto serve and file a late answer is denied, and the matter is remitted to the Supreme Court,Kings County, for an inquest on the issue of damages.
In support of his motion for leave to enter a default judgment on the issue of liability,the plaintiff submitted proof of delivery of copies of the summons and complaint to theSecretary of State (see CPLR 311-a [a]; Limited Liability Company Law §303 [a]). He also submitted proof of the facts constituting the claim, and of thedefendant's default in answering or appearing (see CPLR 3215 [f]; Wassertheil v Elburg, LLC, 94AD3d 753 [2012]; C&HImport & Export, Inc. v MNA Global, Inc., 79 AD3d 784 [2010]; 599 Ralph Ave. Dev., LLC v 799Sterling Inc., 34 AD3d 726 [2006]).
To successfully oppose a motion for leave to enter a default judgment based on thefailure to appear or timely serve an answer, a defendant must demonstrate a reasonableexcuse for its default and the existence of a potentially meritorious defense (seeCPLR 5015 [a] [1]; 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];393 Lefferts Partners, LLC vNew York Ave. at Lefferts, LLC, 68 AD3d 976 [2009]). The defendantcontended that it maintained an old address on file with the Secretary of State, anddenied receipt of copies of the summons and complaint. However, the defendant'sunexplained failure to keep the Secretary of State apprised of its current address over asignificant period of time did not constitute a reasonable excuse (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143; Sussman v Jo-Sta RealtyCorp., 99 AD3d 787, 788 [2012]; Castle v Avanti, Ltd., 86 AD3d 531 [2011]; Yellow Book of N.Y., [*2]Inc. v Weiss, 44 AD3d 755 [2007]; AmeritekConstr. Corp. v Gas, Wash & Go, 247 AD2d 418, 419 [1998]).
Furthermore, the defendant was not entitled to vacatur of its default pursuant toCPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period ofmore than five years, the defendant failed to file, with the Secretary of State, the requiredbiennial form that would have apprised the Secretary of State of its current address(see Limited Liability Company Law § 301 [e]). Under thesecircumstances, the defendants' failure to personally receive copies of the summons andcomplaint was a result of a deliberate attempt to avoid notice of actions commencedagainst it (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143;Hidalgo v Cruiser TaxiCorp., 101 AD3d 950, 951 [2012]; Santiago v Sansue Realty Corp., 243AD2d 622, 622-623 [1997]; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126AD2d 621, 622 [1987]). Accordingly, the plaintiff's motion pursuant to CPLR 3215 (f)for leave to enter a default judgment on the issue of liability against the defendant shouldhave been granted, and the defendant's cross motion pursuant to CPLR 5015 (a) (1) and317 to vacate its default in appearing or answering should have been denied. Rivera, J.P.,Dickerson, Cohen, Hinds-Radix and Maltese, JJ., concur.