M.S. Berkoff Co., Inc. v J.R.D. Mgt. Corp.

[*1] M.S. Berkoff Co., Inc. v J.R.D. Mgt. Corp. 2012 NY Slip Op 51449(U) Decided on July 25, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3046 K C.

M.S. Berkoff Company, Inc. BERKOFF FOX SUPPLY SOURCE DIV., Appellant,

against

J.R.D. Management Corp. Doing Business as MAXX MANAGEMENT, Respondent, -and- 1040 NEILSON STREET OWNERS CORP., TENSHORE REALTY, LTD., 1680 OCEAN AVENUE OWNERS' CORP., 1818 NEWKIRK OWNERS' CORP., 3220 AVENUE H OWNERS CORP., 340 MOSHOLU PKWY SOUTH OWNERS CORP., 43 CALTON ROAD OWNERS' CORP., 599 EAST 7TH STREET OWNERS' CORP., 8020 FOURTH AVENUE OWNERS CORP., 84-20 51ST AVE. OWNERS, INC., 1845 82ND STREET OWNERS CORP., 1855 GRAND CONCOURSE OWNERS CORP., 2685 CRESTON AVENUE OWNERS CORP., 2962 DECATUR AVENUE OWNERS CORP., 3201 GRAND CONCOURSE OWNERS CORP., 35-50 81ST STREET REALTY, LLC, 55 EAST 190TH STREET OWNERS CORP., PRESIDENTIAL OWNERS CORP., and

[*2]KIMBALL BROOKLANDS CORPORATION, Defendants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jacqueline D. Williams, J.), entered May 3, 2010. The order granted a motion by defendant J.R.D. Management Corp. doing business as Maxx Management to vacate a default judgment entered against it.

ORDERED that the order is reversed, without costs, and the motion by defendant J.R.D. Management Corp. doing business as Maxx Management to vacate the default judgment entered against it is denied.

In this action to recover for unpaid invoices, defendant J.R.D. Management Corp. doing business as Maxx Management (J.R.D.) failed to appear or answer the complaint, and a default judgment was entered against it. J.R.D. subsequently moved to vacate the default judgment, contending, among other things, that it was unaware that a summons and complaint had ever been served. The Civil Court granted the motion.

The record shows that, prior to the commencement of this action, plaintiff's counsel had sent correspondence to J.R.D. annexing a courtesy copy of a summons and complaint and informing J.R.D. that he was in the process of filing the summons and complaint, which named J.R.D. as a defendant, with the court and that these papers would then be given to a process server for service upon the Secretary of State. After the summons and complaint had been filed, defense counsel drafted a stipulation to extend J.R.D.'s time to answer the complaint for 30 days, which was signed by plaintiff's counsel following the completion of service of process on the Secretary of State. Thereafter, plaintiff's counsel sent a notice, pursuant to CPLR 3215 (g) (4), to J.R.D., enclosing an additional copy of the summons and informing J.R.D. that the summons and complaint had been served on the Secretary of State. After the time within which J.R.D. was required to answer the complaint, pursuant to the stipulation, had expired, plaintiff obtained a default judgment against J.R.D.

We find that the Civil Court improvidently exercised its discretion in vacating the default judgment since J.R.D. failed to demonstrate a reasonable excuse for its default in appearing or answering the complaint (see Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Leifer v Pilgreen Corp., 62 AD3d 759 [2009]; Segovia v Delcon Constr. Corp., 43 AD3d 1143 [2007]; Canty v Gregory, 37 AD3d 508 [2007]). Based on the record before us, which contained evidence of numerous communications between plaintiff's counsel and J.R.D.'s counsel, J.R.D. was clearly made aware that the summons and complaint had been served. Furthermore, the mere denial of receipt of a summons and complaint is insufficient to rebut the presumption of proper service created by an affidavit of service upon the Secretary of State, which plaintiff proffered in opposition to J.R.D.'s motion (see CPLR 311 [a] [1]; Business Corporation Law § 306; Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631 [2010]; Coyle v Mayer Realty Corp., 54 AD3d 713 [2008]; Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]).

J.R.D. further contends, as a reasonable excuse for its default, that, in any event, it was never served with a "properly endorsed" summons and complaint containing an index number. [*3]We need not pass upon whether service of a summons and complaint that does not contain an index number constitutes a reasonable excuse for a recipient's ensuing default since, here, J.R.D.'s support in its moving papers for its claim that the served copy of the summons and complaint failed to contain an index number was the courtesy copy of the summons and complaint which had been mailed to it by plaintiff's counsel prior to the commencement of the action. Moreover, in opposition to J.R.D.'s motion, plaintiff proffered the copy of the summons and complaint that it alleged had been served on the Secretary of State, which did contain the index number.

In view of the lack of an excusable default, it is unnecessary to consider whether J.R.D. sufficiently demonstrated a meritorious defense (see Jackson v Professional Transp. Corp., 81 AD3d 602 [2011]; Maida v Lessing's Rest. Servs., Inc., 80 AD3d 732 [2011]; Segovia, 43 AD3d at 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431 [2005]). Accordingly, the order is reversed and J.R.D.'s motion to vacate the default judgment entered against it is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012