| Moran v Grand Slam Ventures, LLC |
| 2018 NY Slip Op 02776 [160 AD3d 944] |
| April 25, 2018 |
| Appellate Division, Second Department |
[*1]
| James Moran, Appellant, v Grand Slam Ventures, LLC,Respondent, et al., Defendants. |
James Moran, Bethpage, NY, appellant pro se.
Siegel & Reiner, LLP, New York, NY (Richard H. Del Valle of counsel), forrespondent.
In an action, inter alia, to recover damages for trespass and conversion, the plaintiff appealsfrom an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), enteredSeptember 21, 2016, which granted the motion of the defendant Grand Slam Ventures, LLC,pursuant to CPLR 317 to vacate a prior order of the same court dated February 17, 2016, grantingthe plaintiff's motion for leave to enter a default judgment against it on the issue of liability uponits failure to appear or answer the summons with notice, to vacate the note of issue for an inqueston the issue of damages, and to extend its time to file a notice of appearance and demand for acomplaint.
Ordered that the order entered September 21, 2016, is reversed, on the law, with costs, andthe defendant's motion is denied.
CPLR 317 provides that a person served with a summons, other than by personal delivery tohim or her, who does not appear, may be allowed to defend the action within one year after he orshe obtains knowledge of entry of the judgment upon a finding of the court that he or she did notpersonally receive notice of the summons in time to defend and has a potentially meritoriousdefense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986])."The mere denial of receipt of the summons and complaint is not sufficient to establish lack ofactual notice of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 AD3d757, 758 [2016]). Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam),failed to establish that it did not personally receive notice of the summons in time to defend theaction. The affidavit of Grand Slam's managing member averring that Grand Slam moved itsoffice to an unspecified address in 2010, five years before the action was commenced, and failedto update its address on file with the Secretary of State, was not sufficiently detailed orsubstantiated to establish lack of actual notice of the action (see Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724,725-726 [2016]; Unifiller Sys., Inc. vMelita Corp., 127 AD3d 961, 962 [2015]; cf. Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d 730, 731[2016]; Ferguson v Shu Ham Lam,59 AD3d 387, 388 [2009]). In light of the foregoing, it is unnecessary to determine whetherGrand Slam demonstrated the existence of a potentially meritorious defense (see Xiao Lou Liv China Cheung Gee Realty, LLC, 139 AD3d at 726). [*2]Accordingly, the Supreme Court should have denied Grand Slam'smotion pursuant to CPLR 317 to vacate a prior order granting the plaintiff's motion for leave toenter a default judgment on the issue of liability against Grand Slam, to vacate the note of issuefor an inquest on the issue of damages, and to extend its time to file a notice of appearance anddemand for a complaint. Dillon, J.P., Leventhal, Connolly and Brathwaite Nelson, JJ.,concur.