Volt Viewtech, Inc. v Bomzer

Volt Viewtech, Inc. v Bomzer 2007 NY Slip Op 05568 [41 AD3d 326] June 26, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Volt Viewtech, Inc., Respondent,
v
Alan Bomzer et al., Appellants, et al., Defendants.

—[*1] Annette G. Hasapidis, South Salem, for appellants.

Mait, Wang & Simmons, New York (Robert Wang of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered on or about February 9, 2007, which denied defendants' motion to vacate their default, unanimously affirmed, without costs.

The referee's determination, based largely on credibility (see Ross v Garcia, 19 AD3d 261 [2005]), that substituted service had been made on the individual defendant was properly upheld. While there was no basis in the record to conclude that the corporate defendant had deliberately attempted to avoid notice of this action by failing to keep current with the Secretary of State its agent's address for service of process (see Raiola v 1944 Holding, 1 AD3d 296 [2003]; Reid v Delsener Enters., 84 AD2d 712 [1981], appeal dismissed 55 NY2d 1037 [1982]), and no record evidence of precisely when the law firm initially designated as its agent ceased operating, so that the duration of the corporate defendant's failure to keep its records updated cannot be determined, the corporate defendant's principal and sole shareholder was served with the summons and complaint clearly seeking to subject it to liability and it was therefore aware of the action in time to defend (see J & S Constr. of NY, Inc. v 321 Bowery LLC, 39 AD3d 391 [2007]). [*2]

We have considered defendants' other contentions and find them unavailing. Concur—Sullivan, J.P., Buckley, Gonzalez, Sweeny and Kavanagh, JJ.