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Basile v. Mulholland

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 20, 2010

FRANK BASILE, ET AL., PLAINTIFFS-RESPONDENTS,
v.
SHANNON MULHOLLAND, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 8, 2009, which denied defendants' motion to vacate a default judgment, 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.

Saxe, J.P., Catterson, Renwick, Richter, Abdus-Salaam, JJ.

103030/09

Defendants adduce no competent evidence to support their assertion that the individual defendant had no interest in the corporate defendants for a four-month period of time that happened to coincide with commencement of the action, relieving her of responsibility for answering the complaint, and otherwise fail to show a reasonable excuse for their default (CPLR 5015[a][1]). CPLR 3215(g)(3) does not avail defendants, as the action is not one based on nonpayment of a contractual obligation. Nor does Limited Liability Company Law § 808(a) avail defendants, as plaintiff LLC's failure to obtain a certificate of authority to do business in New York before initiating the action is not a fatal jurisdictional defect and such certificate has since been obtained (cf. Tri-Terminal Corp. v CITC Indus., 78 AD2d 609 [1980]). We have considered defendants' other arguments and find them unavailing.

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

20100520

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