| Xiao Lou Li v China Cheung Gee Realty, LLC |
| 2016 NY Slip Op 03503 [139 AD3d 724] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Xiao Lou Li, Appellant, v China Cheung GeeRealty, LLC, et al., Respondents. |
Wade T. Morris (The Altman Law Firm, PLLC, New York, NY [Michael T.Altman], of counsel), for appellant.
Raimond & Wong, LLC, New York, NY (Allen Wong of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Baynes, J.), dated May 28, 2015, whichgranted the defendants' motion to vacate a prior order of the same court dated September24, 2014, granting his motion for leave to enter a default judgment against the defendantson the issue of liability, upon their failure to appear or answer the complaint, and settingthe matter down for an inquest on the issue of damages.
Ordered that the order dated May 28, 2015, is reversed, on the law, with costs, thedefendants' motion to vacate the order dated September 24, 2014, is denied, and thematter is remitted to the Supreme Court, Kings County, for an inquest on the issue ofdamages.
CPLR 317 permits a defendant who has been served with a summons other than bypersonal delivery to defend the action upon a finding by the court that the defendant didnot personally receive notice of the summons in time to defend and has a meritoriousdefense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138,141-142 [1986]; Schacker RealEstate Corp. v 553 Burnside Ave., LLC, 133 AD3d 586, 587 [2015]; Gershman v Midtown Moving& Stor., Inc., 123 AD3d 974, 975 [2014]). "A defendant seeking to vacatea default in appearing or answering pursuant to CPLR 5015 (a) (1) must demonstrateboth a reasonable excuse for the default and a potentially meritorious defense to theaction" (Sussman v Jo-StaRealty Corp., 99 AD3d 787, 788 [2012]; see Clover M. Barrett, P.C. v Gordon, 90 AD3d 973[2011]). Both CPLR 317 and 5015 (a) (1) "assume personal jurisdiction exists over thedefaulting defendant and provide that party with an opportunity to open the default andcontest the merits of the plaintiff's claim" (Caba v Rai, 63 AD3d 578, 580 [2009]; see VincentC. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC317:1). "If the defaulting defendant asserts that the court lacked personal jurisdictionover him or her, the defendant should seek dismissal of the action under CPLR 5015 (a)(4)" (Caba v Rai, 63 AD3d at 580).
On March 29, 2014, the Supreme Court acquired personal jurisdiction over thedefendant Xiao Hong Zhu when the plaintiff's process server delivered the summons andcomplaint [*2]to a person of suitable age and discretionat Xiao Hong Zhu's "usual place of abode" in Brooklyn (CPLR 308 [2]). On April 1,2014, the court acquired personal jurisdiction over the defendant China Cheung GeeRealty, LLC (hereinafter China Cheung Gee Realty), when the plaintiff's process serverdelivered the summons and complaint to the Secretary of State pursuant to LimitedLiability Corporation Law § 303. China Cheung Gee Realty listed XiaoHong Zhu's address in Brooklyn as its address with the Secretary of State. In an orderdated September 24, 2014, the court granted the plaintiff's motion for leave to enter adefault judgment against the defendants on the issue of liability, upon their failure toappear or answer the complaint, and set the matter down for an inquest on the issue ofdamages. In an order dated May 28, 2015, the court granted the defendants' motion tovacate the order dated September 24, 2014. The plaintiff appeals from the order datedMay 28, 2015.
In support of their motion to vacate the order dated September 24, 2014, thedefendants proffered, inter alia, a conclusory and unsubstantiated affidavit of Xiao HongZhu, who averred that she was a member of China Cheung Gee Realty, and that inNovember 2013, she and China Cheung Gee Realty moved to another unspecifiedlocation, and no longer used the address in Brooklyn as their address. She averred thatneither she nor China Cheung Gee Realty received a copy of the summons and complaintin time to defend the action since those papers were delivered to their old address.
In opposition, the plaintiff proffered evidence that, as of January 2015, the Secretaryof State and the New York City Department of Finance listed the address in Brooklyn asChina Cheung Gee Realty's address, and that none of the plaintiff's counsel's mailings tothe defendants, including additional copies of the summons and complaint, were returnedto the plaintiff's counsel (cf.Drillman v Marsam Realty 13th Ave., LLC, 129 AD3d 903 [2015]). Thedefendants did not rebut the plaintiff's evidence (see Chichester v Alal-Amin Grocery & Halal Meat, 100AD3d 820, 821 [2012]). Accordingly, Xiao Hong Zhu's affidavit, which wassubmitted on behalf of herself and the defendant China Cheung Gee Realty, amounted tonothing more than a denial of receipt of the summons and complaint, which is notsufficient to establish lack of actual notice of the action in time to defend for the purposeof CPLR 317 (see CapitalSource v AKO Med., P.C., 110 AD3d 1026, 1027 [2013]; Stevens v Charles, 102 AD3d763, 765 [2013]; Wassertheil v Elburg, LLC, 94 AD3d 753, 754 [2012];Clover M. Barrett, P.C. v Gordon, 90 AD3d at 973-974; Matter of Rockland Bakery, Inc. vB.M. Baking Co., Inc., 83 AD3d 1080, 1081 [2011]).
Similarly, Xiao Hong Zhu's affidavit was insufficient to establish a reasonableexcuse for the defendants' default pursuant to CPLR 5015 (a) (1) (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141-142; Gershman vMidtown Moving & Stor., Inc., 123 AD3d at 975; Chichester v Alal-AminGrocery & Halal Meat, 100 AD3d at 821; Sussman v Jo-Sta RealtyCorp., 99 AD3d at 788).
In light of the foregoing, it is unnecessary to determine whether the defendantsdemonstrated the existence of a potentially meritorious defense for purposes of eitherCPLR 317 or 5015 (a) (1) (see Capital Source v AKO Med., P.C., 110 AD3d at1027; Deutsche Bank Natl.Trust Co. v Pietranico, 102 AD3d 724, 725 [2013]).
Accordingly, the Supreme Court should have denied the defendants' motion to vacatethe order dated September 24, 2014. Dillon, J.P., Leventhal, Chambers and Barros, JJ.,concur.