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Barretta Realty Skyline Div of Real Property Technologies LLC, Appellant v. A Abstract

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


July 25, 2011

BARRETTA REALTY SKYLINE DIV OF REAL PROPERTY TECHNOLOGIES LLC, APPELLANT,
v.
A ABSTRACT, INC. ALSO KNOWN AS A ABSTRACT, INC.1, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny L. Baynes, J.), entered July 22, 2009.

Barretta Realty Skyline v A Abstract, Inc.

Decided on July 25, 2011

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

In April 2009, plaintiff commenced this action to recover damages for title research services it had rendered to defendant. Service of process upon defendant was effectuated by delivering same to an authorized agent of the Secretary of State (see Business Corporation Law § 306; CPLR 311). Defendant failed to appear or answer, and a default judgment in the principal sum of $25,000 was entered against defendant in June 2009. After defendant's bank account was frozen, defendant moved to vacate the default judgment, which motion was granted by the Civil Court.

"A person served with a summons other than by personal delivery to him [or her] or to his [or her] agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action" by moving to vacate the default judgment within one year of learning of the judgment. The movant need only demonstrate a potentially meritorious defense in support of the motion (CPLR 317; see Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080 [2011]; Caba v Rai, 63 AD3d 578, 580 [2009]). "[S]ervice on a corporation through delivery of process to the Secretary of State is not personal delivery' to the corporation or to an agent designated under CPLR 318" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr, Co., 67 NY2d 138, 142 [1986]; Matter of Rockland Bakery, Inc., 83 AD3d 1080).

In support of the motion to vacate the default judgment, the owner of the corporate defendant stated that defendant did not appear and answer because defendant had not been served with a summons or complaint. This statement, however, is insufficient to rebut the presumption of proper service or to establish a lack of actual notice for the purpose of CPLR 317 (see Matter of Rockland Bakery, Inc., 83 AD3d 1080; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164 [2010]; Shimel v 5 S. Fulton Ave. Corp., 11 AD3d 527 [2004]). Consequently, to be successful on its motion, defendant was required to 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 at 141; Mora v Scarpitta, 52 AD3d 663 [2008]). The aforementioned conclusory allegations, however, are also insufficient to demonstrate a reasonable excuse for defendant's default in appearing or answering. Moreover, defendant's owner's conclusory statements that he disputed "the alleged amount that was owed to the Plaintiffs" and that he does "not owe Plaintiffs $25,000," are insufficient to demonstrate a meritorious defense to the action (see Palisades Collection, LLC v Latchman, 21 Misc 3d 142[A], 2008 NY Slip Op 52384[U] [App Term, 2d & 11th Jud Dists 2008]; see also Todd Rotwein, D.P.M., P.C. v Goodson, 23 Misc 3d 135[A], 2009 NY Slip Op 50813[U] [App Term, 9th & 10th Jud Dists 2009]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: July 25, 2011

20110725

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