| Drillman v Marsam Realty 13th Ave., LLC |
| 2015 NY Slip Op 05150 [129 AD3d 903] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Ida Drillman, Appellant, v Marsam Realty 13thAvenue, LLC, Respondent, et al., Defendant. |
Isaac Tessler, New York, N.Y., for appellant.
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York, N.Y. (Paul N.Gruber of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Toussaint, J.), dated May 28, 2014, whichgranted the motion of the defendant Marsam 13th Realty Avenue, LLC, to vacate ajudgment of the same court dated October 1, 2013, entered upon its failure to appear oranswer, and for leave to serve an answer.
Ordered that the order dated May 28, 2014, is reversed, on the law, with costs, andthe matter is remitted to the Supreme Court, Kings County, for a hearing on the issue ofwhether the defendant Marsam 13th Realty Avenue, LLC, received notice of the certifiedmail sent to it by the New York Secretary of State, and thereafter, for a newdetermination of the motion of the defendant Marsam 13th Realty Avenue, LLC, tovacate the judgment dated October 1, 2013, and for leave to serve an answer.
The process server's affidavit of service established that service of process upon theNew York Secretary of State as agent for the defendant Marsam 13th Realty Avenue,LLC (hereinafter Marsam), constituted valid service pursuant to Limited LiabilityCompany Law § 303 (a) (see CPLR 311-a [a]; Bennett v Patel Catskills, LLC,120 AD3d 458 [2014]; Trini Realty Corp. v Fulton Ctr. LLC, 53 AD3d 479[2008]; Union Indem Ins. Co. of N.Y. v 10-01 50th Ave. Realty Corp., 102AD2d 727, 728 [1984]). Marsam's mere denial of receipt of the summons and complaintwas insufficient to rebut the presumption of proper service created by service upon theSecretary of State (see Thas vDayrich Trading, Inc., 78 AD3d 1163, 1164 [2010]; Gartner v Unified Windows, Doors& Siding, Inc., 71 AD3d 631, 632 [2010]; Coyle v Mayer Realty Corp.,54 AD3d 713 [2008]). Therefore, Marsam was not entitled to relief pursuant toCPLR 5015 (a) (4).
However, the record demonstrates that Marsam did not personally receive notice ofthe summons and complaint in time to defend the action and had a potentiallymeritorious defense (see CPLR 317, 5015 [a] [1]; Eugene Di Lorenzo, Inc. vA.C. Dutton Lbr. Co., 67 NY2d 138, 141-143 [1986]). The fact that the summonsand complaint, which had been sent by certified mail, return receipt requested, to theaddress on file with the Secretary of State, had been returned to the Secretary of State as"unclaimed," raised an issue of fact as to whether Marsam received notice of the certifiedmail sent to it by the Secretary of State. Thus, the matter must be remitted to the [*2]Supreme Court, Kings County, for a hearing and a newdetermination of that issue and of Marsam's motion to vacate the judgment and for leaveto serve an answer (see Bennettv Patel Catskills, LLC, 120 AD3d 458 [2014]; Avila v Distinctive Dev. Co.,LLC, 120 AD3d 449, 450 [2014]; Henniger v L.B.X. Excavating, 176AD2d 917, 918 [1991]). Mastro, J.P., Chambers, Maltese and Duffy, JJ., concur.