- February 13, 2018
Michael Fuller Sirignano, Cross River, NY (Jason Krellenstein
of counsel), for appellant.
& Beane, P.C., White Plains, NY (Andrew P. Tureaud of
counsel), for respondent.
D. SCHEINKMAN, P.J. COLLEEN D. DUFFY FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
action, inter alia, to recover damages for constructive
eviction, the defendant appeals from an order of the Supreme
Court, Westchester County (Terry Jane Ruderman, J.), dated
November 25, 2016. The order denied the defendant's
motion to vacate a judgment dated January 10, 2014, entered
upon its failure to answer or appear.
that the order is reversed, on the facts and in the exercise
of discretion, with costs, and the defendant's motion to
vacate the judgment dated January 10, 2014, is granted.
plaintiff, Benchmark Farm, Inc., a horse farm, commenced this
action on December 9, 2010, to recover damages from its
former landlord, the defendant Red Horse Farm, LLC,
asserting, inter alia, constructive eviction, interference
with quiet enjoyment, and unjustified failure to return a
security deposit. The plaintiff served the defendant pursuant
to Limited Liability Company Law § 303, by personal
delivery of copies of the summons and verified complaint to
the office of the Secretary of State.
defendant failed to answer or otherwise appear, and a
judgment dated January 10, 2014 (hereinafter the judgment),
was entered upon the defendant's default. Thereafter, the
defendant moved on or about September 28, 2016, by order to
show cause, to vacate the judgment pursuant to, inter alia,
CPLR 317. In an order dated November 25, 2016, the Supreme
Court denied the defendant's motion in its entirety.
defendant who has been served with a summons other than by
personal delivery may be allowed to defend the action within
one year after he or she obtains knowledge of entry of the
judgment upon a finding of the court that the defendant did
not personally receive notice of the summons in time to
defend and has a potentially meritorious defense
(see CPLR 317; Eugene Di Lorenzo, Inc. v. A.C.
Dutton Lbr. Co., 67N.Y.2d 138, 141-142; Dalton v
Noah Constr. & Bldrs., Inc., 136 A.D.3d 730, 731).
the defendant submitted the sworn affidavit of its principal,
who stated that the defendant did not learn of the action or
the judgment until August 2016, and that approximately one
month thereafter it moved to vacate the judgment. The
affidavit indicated that in 2003 the defendant's
principal had moved his residence from the address on file
with the Secretary of State and that neither the defendant
nor its principal had received mail at that address since
2004. The affidavit also provided that the defendant's
address had not been updated with the Secretary of State.
There is no evidence in the record that the defendant or its
agent received actual notice of the summons, which was
delivered to the Secretary of State, in time to defend this
action (see Dalton v Noah Constr. & Bldrs.,
Inc., 136 A.D.3d at 731; Schacker Real Estate Corp.
v 553 Burnside Ave., LLC, 133 A.D.3d 586, 587;
Gershman v Midtown Moving & Stor., Inc., 123
A.D.3d 974, 975). Although the defendant did not explain why
it failed to update its address with the Secretary of State,
"there is no necessity for a defendant moving pursuant
to CPLR 317 to show a 'reasonable excuse' for its
delay" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr.
Co., 67 N.Y.2d at 141; see Gershman v Midtown Moving
& Stor., Inc., 123 A.D.3d at 975), and there is no
basis in the record to conclude that the defendant
deliberately attempted to avoid service, especially since the
plaintiff had knowledge of the defendant's actual
business address and had written to the defendant at that
address regarding the dispute that gave rise to the
plaintiffs complaint (see Dalton v Noah Constr. &
Bldrs., Inc., 136 A.D.3d at 731; Schacker Real
Estate Corp. v 553 Burnside Ave., LLC, 133 A.D.3d at
587; Gershman v Midtown Moving & Stor., Inc.,
123 A.D.3d at 975).
addition, through the affidavit of the defendant's
principal averring that the plaintiff failed to comply with
the terms of the parties' oral lease, the defendant met
its burden of demonstrating the existence of a potentially
meritorious defense (see Booso v Tausik Bros., LLC,
148 A.D.3d 1108, 1108).
these circumstances, the Supreme Court should have granted
the defendant's motion to vacate the judgment (see
Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133
A.D.3d at 588; Maron v Crystal Bay Imports, Ltd., ...