| Hamilton Pub. Relations v Scientivity, LLC |
| 2015 NY Slip Op 05443 [129 AD3d 1025] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| Hamilton Public Relations, a Subsidiary ofCommunications Plus, Inc., Respondent, v Scientivity, LLC,Appellant. |
Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and Christopher H.Feldman of counsel), for appellant.
In an action, inter alia, to recover damages for breach of contract, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court,Westchester County (Walker, J.), entered October 11, 2013, as denied its motion tovacate a judgment of the same court entered February 19, 2013, upon its failure to appearor answer.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
A party seeking to vacate a default in appearing or answering pursuant to CPLR5015 (a) (1), and thereupon to serve a late answer, must demonstrate a reasonable excusefor the default and a potentially meritorious defense to the action (see CPLR5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138,141 [1986]; Garal Wholesalers,Ltd. v Raven Brands, Inc., 82 AD3d 1041, 1041 [2011]). Here, the defendantdid not contend that the address that it had on file with the Secretary of State wasincorrect and, therefore, the mere denial of receipt of the summons and complaint,without more, was insufficient to demonstrate a reasonable excuse for its default(see Limited Liability Company Law § 303 [a]; Thas v Dayrich Trading, Inc.,78 AD3d 1163, 1164 [2010]; May v Hartsdale Manor Owners Corp., 73 AD3d 713[2010]; Trini Realty Corp. vFulton Ctr. LLC, 53 AD3d 479, 480 [2008]).
Since the defendant failed to demonstrate a reasonable excuse for its default, it isunnecessary to consider whether the defendant sufficiently demonstrated the existence ofa potentially meritorious defense (see Capital Source v AKO Med., P.C., 110 AD3d 1026,1026 [2013]; Tribeca LendingCorp. v Correa, 92 AD3d 770 [2012]).
The mere denial of receipt of the summons and complaint is also insufficient toestablish lack of notice of the action in time to defend for the purpose of CPLR 317(see Capital Source v AKO Med., P.C., 110 AD3d at 1027; Wassertheil v Elburg, LLC, 94AD3d 753, 754 [2012]; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83AD3d 1080, 1081-1082 [2011]).
Since the defendant failed to demonstrate that it was entitled to vacate the defaultjudgment pursuant to CPLR 5015 (a) (1) or 317, any failure on the part of the plaintiff tocomply with CPLR 3215 (g) (4) (i) did not constitute a fatal defect (see Castle v Avanti, Ltd., 86AD3d 531, 532 [2011]; [*2]Peck v Dybo Realty Corp.,77 AD3d 640, 641 [2010]; Mauro v 1896 Stillwell Ave., Inc., 39 AD3d 506, 506-507[2007]).
The defendant's remaining contentions are without merit. Rivera, J.P., Cohen,Hinds-Radix and Barros, JJ., concur.