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Shanker v. 119 East 30th

June 23, 2009

STEVEN SHANKER, ET AL., PLAINTIFFS-APPELLANTS,
v.
119 EAST 30TH, LTD., DEFENDANT-RESPONDENT.



Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 22, 2008, which vacated a prior order granting leave to enter a default judgment, and order, same court and Justice, entered March 27, 2008, which denied plaintiffs' motion for a default judgment and granted defendant's cross motion to serve its answer, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Sweeny, Buckley, Renwick, Freedman, JJ.

111969/07

Defendant asserts it did not receive a copy of the summons and complaint from the Secretary of State, pointing out that the process sent to defendant was returned marked "ATTEMPTED UNKNOWN/NOT KNOWN." Jurisdiction was obtained over this corporate defendant by service of process on the Secretary of State irrespective of whether the process ever actually reached defendant (Associated Imports v Amiel Publ., 168 AD2d 354 [1990], lv dismissed 77 NY2d 873 [1991]). The failure to keep a current address with the Secretary of State pursuant to Business Corporation Law § 306(b)(1) is generally not a reasonable excuse for default under CPLR 5015(a)(1) (Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [2002]). However, where the court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be granted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Arabesque Recs. LLC v Capacity LLC, 45 AD3d 404 [2007]). Moreover, there is no evidence that defendant deliberately attempted to avoid notice of the action (see Grosso v MTO Assoc. Ltd. Partnership, 12 AD3d 402, 403 [2004]).

Defendant made a prima facie showing of a meritorious defense by submitting evidence of a promise to pay for plaintiffs' roof repairs through a series of emails (see Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008]). With respect to defendant's failure to appear at oral argument, its attorneys' confusion over the court's calendar practices does not preclude defendant from vacating an unintentional default (see Price v Boston Rd. Dev. Corp., 56 AD3d 336 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090623

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