| Dalton v Noah Constr. & Bldrs., Inc. |
| 2016 NY Slip Op 00922 [136 AD3d 730] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Brian Dalton et al., Appellants, v NoahConstruction & Builders, Inc., Respondent. |
Greenblatt & Agulnick, P.C., Great Neck, NY (Scott E. Agulnick and Steven A.Kotchek of counsel), for appellants.
Law Office of Robert L. Greener, P.C., New York, NY, for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, NassauCounty (Mahon, J.), entered December 15, 2014, as granted that branch of thedefendant's motion which was pursuant to CPLR 317 and 5015 (a) (1) to vacate ajudgment of the same court dated April 22, 2014, entered against the defendant upon itsfailure to appear or answer the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
CPLR 317 permits a defaulting defendant who was served with a summons otherthan by personal delivery to defend the action upon a finding by the court that thedefendant did not personally receive notice of the summons in time to defend and has apotentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr.Co., 67 NY2d 138, 141-142 [1986]; Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133AD3d 586, 587 [2015]; Gershman v Midtown Moving & Stor., Inc., 123 AD3d974 [2014]). A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1)must demonstrate both a reasonable excuse for the default and a potentially meritoriousdefense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at141-142; Gershman v Midtown Moving & Stor., Inc., 123 AD3d at975).
Here, there was no evidence that the defendant or its agent received actual notice ofthe summons, which was delivered to the Secretary of State, in time to defend this action(see Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133 AD3d at 587;Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975). Thedefendant demonstrated through its submission of the affidavit of its president, PeterCacopedro, and additional documentation, that in 2011, it filed the necessary paperworkto keep its current address on file with the Secretary of State, but the Secretary of Statedid not reflect the change of address in their records. Furthermore, there is no basis in therecord to conclude that the defendant deliberately attempted to avoid service, especiallysince the plaintiffs had knowledge of the defendant's actual business address (seeSchacker Real Estate Corp. v 553 Burnside Ave., LLC, 133 AD3d at 587;Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975). Based onthe specific facts and circumstances of this case, the defendant's failure to receive [*2]actual notice of the summons in time to defend the actionconstituted a reasonable excuse for his default. In addition, the defendant met its burdenof demonstrating the existence of a potentially meritorious defense (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141-142).
Accordingly, the Supreme Court properly granted that branch of the defendant'smotion which was pursuant to CPLR 317 and 5015 (a) (1) to vacate the judgment datedApril 22, 2014. Mastro, J.P., Leventhal, Cohen and LaSalle, JJ., concur.