NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
June 23, 2009
STEVEN SHANKER, ET AL., PLAINTIFFS-APPELLANTS,
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.
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 , lv dismissed 77 NY2d 873 ). 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 ). 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 ; Arabesque Recs. LLC v Capacity LLC, 45 AD3d 404 ). 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 ).
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 , lv dismissed 10 NY3d 930 ). 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 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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