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393 Lefferts Partners, LLC v. New York Avenue at Lefferts

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

393 LEFFERTS PARTNERS, LLC, RESPONDENT,
v.
NEW YORK AVENUE AT LEFFERTS, LLC, APPELLANT, ET AL., DEFENDANTS.

In an action to foreclose a mortgage, the defendant New York Avenue at Lefferts, LLC, appeals from an order of the Supreme Court, Kings County (Martin, J.), dated September 15, 2008, which denied its motion, inter alia, pursuant to CPLR 5015(a)(1) and CPLR 317 to vacate its default in appearing or answering the complaint and for leave to serve an answer.

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.

A. GAIL PRUDENTI, P.J., JOSEPH COVELLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

(Index No. 27622/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

A defendant seeking to vacate a default in answering must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B.R. Trucking Co., 59 NY2d 649, 650; Harris v City of New York, 30 AD3d 461, 463-464; Orangetown Policemen's Benevolent Assn. v Town of Orangetown, 18 AD3d 841). The appellant submitted an affidavit of service that stated that it was served on August 10, 2007, pursuant to Limited Liability Company Law § 303, by service upon the Secretary of State. The appellant also submitted a certificate of service and return receipt showing that the Secretary of State delivered the summons and complaint to the appellant's designated address by certified mail, return receipt requested, but the return receipt was not dated and was signed by a person who was not employed by the appellant. Joseph Artusa, one of the appellant's managing members, stated in an affidavit that he was out of the office "on many days" in August and September of 2007 and did not see the summons and complaint on his desk until late September, when the time to answer it had expired. This statement does not provide a reasonable excuse for the appellant's default. Moreover, the Supreme Court providently exercised its discretion in determining that the appellant was not entitled to relief pursuant to CPLR 317, since it failed to demonstrate that it did not receive actual notice of the summons and complaint in time to defend the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498). In addition, the appellant failed to demonstrate a meritorious defense to the action.

The appellant's remaining contention is without merit.

PRUDENTI, P.J., COVELLO, LOTT and SGROI, JJ., concur.

20091215

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