Long Is. Indus. Group Two LLC v Prime Communications Inc.

[*1] Long Is. Indus. Group Two LLC v Prime Communications Inc. 2006 NY Slip Op 51668(U) [13 Misc 3d 127(A)] Decided on August 17, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1663 S C.

Long Island Industrial Group Two LLC, Appellant,

against

Prime Communications Incorporated, Respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Gigi A. Spelman, J.), entered September 6, 2005. The order granted defendant's motion to vacate a default judgment.

Order reversed without costs and defendant's motion to vacate the default judgment denied.

In this action to recover damages for breach of a lease agreement and for attorney's fees, service of the summons and complaint was made on the Secretary of State pursuant to Business Corporation Law § 306. Upon defendant's default in appearing and answering the complaint, plaintiff obtained a default judgment. Thereafter, defendant moved to vacate its default pursuant to CPLR 5015 (a) (1) and (a) (4), claiming that it had not received notice of the summons and complaint because the address on file with the Secretary of State had not been its address for approximately nine years. Over plaintiff's opposition, the court granted defendant's motion and vacated the default.

Under the circumstances of this case, the failure of the corporate defendant to receive service of process due to its breach of its obligation to keep a current address on file with the Secretary of State (Business Corporation Law § 306) does not constitute a reasonable excuse for its defaulting in this action (see Widgren v 313 E. 9th Assoc., 295 AD2d 146 [2002]). While there is no per se rule under CPLR 5015 which precludes a corporation from establishing, as its reasonable excuse for defaulting in an action, that it failed to keep its current address on file with the Secretary of State (Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143 [1980]), the courts will consider, as one factor in determining whether such an excuse is reasonable, the amount of time for which the address had not been updated (Eugene Di Lorenzo, Inc., 67 NY2d at 143). Since defendant failed to update its address with the Secretary of State for over nine years, we find that defendant has not demonstrated a reasonable excuse for defaulting in this [*2]action.

While relief from a default judgment may be obtained pursuant to CPLR 317 where service was made in a manner other than by personal delivery and, inter alia, the defaulting party did not receive actual notice of the summons in time to defend (Persaud v Gallante Props., Inc., 11 AD3d 442 [2004]; Udell v Alcamo Supply & Constr. Corp., 275 AD2d 453 [2000]), here not only was defendant's address on file with the Secretary of State stale, but defendant also failed to rebut proof offered by plaintiff that an additional copy of the summons and complaint was mailed to defendant's current, last known address. The affidavit of service raised a presumption that a proper mailing occurred and that defendant received the summons and complaint, and defendant's mere denial of receipt, without more, was insufficient to rebut this presumption (see Udell, 275 AD2d at 454; Facey v Heyward, 244 AD2d 452 [1997]). Accordingly, the order granting defendant's motion to vacate the default judgment is reversed and the motion denied.
In light of the foregoing, we also find no basis to grant defendant's motion pursuant to CPLR 5015 (a) (4) (see Waldon v Plotkin, 303 AD2d 581 [2003]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: August 17, 2006