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It is not 5015 but 317December 29, 2014

Gershman v Midtown Moving & Storrage, Inc., 2014 NY Slip Op 08959 (2d Dept. 2014)

“The defendant did not adequately explain the failure to file with the Secretary of State the current address of the agent designated to receive process on its behalf (see Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788; Yellow Book of N.Y., Inc. v Weiss, 44 AD3d 755, 756; Franklin v 172 Aububon Corp., 32 AD3d 454[*2]454-455).

Although the defendant did not cite to CPLR 317 in opposition to the plaintiffs’ motion, under the circumstances of this case, this Court may consider CPLR 317 as a basis for vacating the default (see CPLR 2001; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Brickhouse Masonry, LLC v Windward Bldrs., Inc., 101 AD3d 919, 920; Brac Constr. Corp. v Di-Com Corp., 51 AD2d 740, 740). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” to defend the action upon a finding by the court that the defendant “did not personally receive notice of the summons in time to defend and has a meritorious defense” (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Fleisher v Kaba, 78 AD3d 1118, 1119; Reyes v DCH Mgt., Inc., 56 AD3d 644). Here, the record reveals that neither the defendant nor its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend itself against this action (see Fleisher v Kaba, 78 AD3d at 1119;Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 411). There is no basis in the record upon which to conclude that the defendant was deliberately attempting to avoid service of process, especially since the plaintiffs had knowledge of the defendant’s actual business address (see Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405; Stein v A. Matarasso & Co., 143 AD2d 825, 826). In addition, the defendant met its burden of demonstrating the existence of a potentially meritorious defense (see Blake v United States of Am., 109 AD3d at 505).”

I like this case because it one of those rare times where the Second Department explicitly held that while a reasonable excuse was not satisfied, relief in accordance with 317 was appropriate.  I have not seen too many successful 317 challenges, which made this case interesting.

 

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