Arabesque Recs. LLC v Capacity LLC

Arabesque Recs. LLC v Capacity LLC 2007 NY Slip Op 08882 [45 AD3d 404] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Arabesque Recordings LLC, Appellant,
v
Capacity LLC, Respondent.

—[*1] Llorca & Hahn LLP, New York City (Richard E. Hahn of counsel), for appellant.

Wachtel & Masyr, LLP, New York City (John H. Reichman of counsel), for respondent.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 31, 2007, which granted defendant's motion to vacate a default judgment, unanimously affirmed, with costs.

A corporation's failure to file a change of address with the Secretary of State does not constitute a per se barrier to vacatur of a default judgment pursuant to CPLR 317, which permits a defendant who has been "served with a summons other than by personal delivery" and "who does not appear" to defend the action "upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense" (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]). The affidavit submitted by defendant established that it did not receive personal notice of the summons in time to defend and that its defense was meritorious. We reject plaintiff's analogy to cases developed under the Vehicle and Traffic Law (see Cruz v Narisi, 32 AD3d 981, 983 [2006, Goldstein, J., concurring] ["since motor vehicles are mobile, timely notification of the change of address of a registered owner of a motor vehicle is vital"]).

Even if, as plaintiff contends, defendant's motion should have been considered a motion to renew, it was properly granted (see B.B.Y. Diamonds Corp. v Five Star Designs, 6 AD3d 263, 264 [2004]). Defendant's initial failure to submit an affidavit in admissible form was demonstrably inadvertent and plaintiff failed to show any prejudice attributable to the delay caused by the failure. [*2]

We have considered plaintiff's remaining arguments and find them unavailing. Concur—Andrias, J.P., Marlow, Williams, Buckley and Malone, JJ.