| Avila v Distinctive Dev. Co., LLC |
| 2014 NY Slip Op 05613 [120 AD3d 449] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1](August 6, 2014)
| Dawn M. Avila, Now Known as Dawn Bechtold,Respondent, v Distinctive Development Co., LLC, et al.,Appellants. |
Law Offices of Mitchell J. Devack, PLLC, East Meadow, N.Y., for appellants.
Silverberg, P.C., Central Islip, N.Y. (Karl Silverberg of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendantsappeal from so much of an order of the Supreme Court, Queens County (Weiss, J.),entered October 16, 2012, as denied those branches of their motion which were (a)pursuant to CPLR 317 to vacate so much of an order of the same court entered April 10,2012, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3215for leave to enter a default judgment against the defendant Distinctive Development Co.,LLC, and (b) pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar asasserted against the defendant Alan Schneebaum.
Ordered that the order entered October 16, 2012, is reversed insofar as appealedfrom, on the law, with costs, that branch of the defendants' motion which was pursuant toCPLR 3211 (a) to dismiss the amended complaint insofar as asserted against thedefendant Alan Schneebaum is granted, and the matter is remitted to the Supreme Court,Queens County, for a hearing on the issue of whether the defendant DistinctiveDevelopment Co., LLC, received notice of the certified mail sent to it by the New YorkSecretary of State and, thereafter, for a new determination on that branch of thedefendants' motion which was pursuant to CPLR 317 to vacate that portion of the orderentered April 10, 2012, which granted that branch of the plaintiff's motion which waspursuant to CPLR 3215 for leave to enter a default judgment against the defendantDistinctive Development Co., LLC.
The plaintiff commenced this action against Distinctive Development Co., LLC(hereinafter Distinctive), alleging causes of action to recover damages for breach ofcontract and negligence. In an order entered April 10, 2012, the Supreme Court grantedthe plaintiff's motion for leave to enter a default judgment against Distinctive and forleave to serve a supplemental summons and amended complaint so as to add AlanSchneebaum, Distinctive's managing member, as an additional defendant.
The Supreme Court should have granted that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as assertedagainst [*2]Schneebaum. The defendants demonstratedthat the cause of action insofar as asserted against Schneebaum to recover damages fornegligence was time-barred (see CPLR 3211 [a] [5]). Contrary to the plaintiff'scontention, she failed to demonstrate that the relation-back doctrine applied, as she didnot establish that her failure to name Schneebaum as a defendant in the originalcomplaint was due to a mistake on her part (see Buran v Coupal, 87 NY2d 173,181 [1995]; Sally v KeyspanEnergy Corp., 106 AD3d 894, 897 [2013]; Cardamone v Ricotta, 47 AD3d 659, 660-661 [2008]). Theamended complaint also failed to state a cause of action against Schneebaum (seeCPLR 3211 [a] [7]) under a piercing-the-corporate-veil theory, as the amended complaintdid not allege that Schneebaum abused the privilege of doing business in the corporateform (see Allstate ATM Corp. vE.S.A. Holding Corp., 98 AD3d 541, 542 [2012]; B. Merrick Rd., LLC v ChrisoFood Servs., Inc., 95 AD3d 913, 914 [2012]; East Hampton Union Free SchoolDist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 126-127 [2009], affd 16NY3d 775 [2011]).
The Supreme Court also erred in denying, without a hearing, that branch of thedefendants' motion which was pursuant to CPLR 317 to vacate so much of the orderentered April 10, 2012, as granted that branch of the plaintiff's motion which waspursuant to CPLR 3215 for leave to enter a default judgment against Distinctive. Thedefendants demonstrated that Distinctive, which was not served with copies of thesummons and complaint by personal delivery, did not personally receive notice of thesummons in time to defend the action, and had a potentially meritorious defense(see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67NY2d 138, 141-142 [1986]; Brickhouse Masonry, LLC v Windward Bldrs., Inc., 101 AD3d919, 920 [2012]; Maron vCrystal Bay Imports, Ltd., 99 AD3d 867, 868 [2012]). The Supreme Courtdetermined that Distinctive deliberately attempted to avoid notice of the summons, basedupon the fact that the New York Secretary of State mailed a copy of the summons andcomplaint to Distinctive by certified mail, in time for it to defend the action, and that thismailing was returned "unclaimed." However, the Supreme Court should not have madethis determination without conducting a hearing as to whether Distinctive received noticeof the dispatch or delivery of the certified mail from the Secretary of State (seeRodriguez v Bridge Realty, 155 AD2d 271, 271-272 [1989]; Rifenburg v LiffitonHomes, 107 AD2d 1015, 1016-1017 [1985]). Accordingly, we remit the matter tothe Supreme Court, Queens County, for a hearing on the issue of whether Distinctivereceived notice of the certified mail sent to it by the Secretary of State, and for a newdetermination thereafter on that branch of the defendants' motion which was pursuant toCPLR 317 to vacate of much of the order entered April 10, 2012, as granted that branchof the plaintiff's motion which was pursuant to CPLR 3215 for leave to enter a defaultjudgment against Distinctive. Mastro, J.P., Chambers, Lott and Duffy, JJ., concur.[Prior Case History: 2012 NY Slip Op 32581(U).]