| Gershman v Midtown Moving & Storage, Inc. |
| 2014 NY Slip Op 08959 [123 AD3d 974] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Richard S. Gershman et al.,Appellants, v Midtown Moving & Storage, Inc.,Respondent. |
Richard S. Gershman & Assoc., P.C., Lake Success, N.Y., for appellants.
Agulnick & Gogel, LLC, Great Neck, N.Y. (William A. Gogel of counsel), forrespondent.
In an action to recover damages for conversion, the plaintiffs appeal from an order ofthe Supreme Court, Nassau County (Iannacci, J.), entered May 22, 2014, which deniedtheir motion pursuant to CPLR 3215 for leave to enter a judgment on the issue of liabilityagainst the defendant upon its failure to appear or answer, and granted the defendant'scross application for leave to serve a late answer.
Ordered that on the Court's own motion, the appeal from so much of the order asgranted the defendant's cross application for leave to serve a late answer is deemed to bean application for leave to appeal, and leave to appeal from that portion of the order isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
Contrary to the plaintiffs' contention, in opposing the plaintiffs' motion for defaultjudgment, the defendant appeared by an attorney in this action. The defendant's papers inopposition to the plaintiffs' motion were indorsed by the law firm representing thedefendant and signed by a member attorney of that law firm pursuant to 22 NYCRR130-1.1 (a) (see CPLR 2101 [d]; Salt Aire Trading LLC v Sidley Austin Brown & Wood,LLP, 93 AD3d 452, 453 [2012]; Parker v Paton Assoc. Inc. ofAmsterdam, 128 Misc 2d 871, 872 [1985]).
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 (see Blake v United States ofAm., 109 AD3d 504, 505 [2013]; Wassertheil v Elburg, LLC, 94 AD3d 753, 753 [2012]).Here, in opposition to the plaintiffs' motion, the defendant failed to demonstrate areasonable excuse for its default (see generally CPLR 5015 [a] [1]; Blake vUnited States of Am., 109 AD3d at 505; Weinstein v Schacht, 98 AD3d 1106, 1107 [2012];Wassertheil v Elburg, LLC, 94 AD3d at 753). The defendant did not adequatelyexplain the failure to file with the Secretary of State the current address of the agentdesignated to receive process on its behalf (see Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788[2012]; Yellow Book of N.Y.,Inc. v Weiss, 44 AD3d 755, 756 [2007]; Franklin v 172 Aububon Corp., 32 AD3d 454, [*2]454-455 [2006]).
Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs'motion, under the circumstances of this case, this Court may consider CPLR 317 as abasis for vacating the default (see CPLR 2001; Eugene Di Lorenzo, Inc. vA.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Brickhouse Masonry, LLC vWindward Bldrs., Inc., 101 AD3d 919, 920 [2012]; Brac Constr. Corp. vDi-Com Corp., 51 AD2d 740, 740 [1976]). CPLR 317 permits a defendant who hasbeen "served with a summons other than by personal delivery" to defend the action upona finding by the court that the defendant "did not personally receive notice of thesummons in time to defend and has a meritorious defense" (CPLR 317; see EugeneDi Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; Taieb v Hilton HotelsCorp., 60 NY2d 725, 728 [1983]; Fleisher v Kaba, 78 AD3d 1118, 1119 [2010]; Reyes v DCH Mgt., Inc., 56AD3d 644 [2008]). Here, the record reveals that neither the defendant nor its agentreceived actual notice of the summons, which was delivered to the Secretary of State, intime to defend itself against this action (see Fleisher v Kaba, 78 AD3d at 1119;Calderon v 163 Ocean TenantsCorp., 27 AD3d 410, 411 [2006]). There is no basis in the record upon which toconclude that the defendant was deliberately attempting to avoid service of process,especially since the plaintiffs had knowledge of the defendant's actual business address(see Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405 [2002];Stein v Matarasso & Co., 143 AD2d 825, 826 [1988]). In addition, thedefendant met its burden of demonstrating the existence of a potentially meritoriousdefense (see Blake v United States of Am., 109 AD3d at 505). Accordingly, theSupreme Court properly denied the plaintiffs' motion for leave to enter a defaultjudgment against the defendant.
Under the circumstances presented here, the Supreme Court providently exercised itsdiscretion in granting the defendant's cross application for leave to serve a late answer,even in the absence of a formal notice of cross motion seeking that relief (see id.;Fried v Jacob Holding, Inc.,110 AD3d 56 [2013]). Dillon, J.P., Dickerson, Roman and Sgroi, JJ., concur.