Bennett v. Patel Catskills, LLC

• Decision Date: 06 August 2014
• Citation: 990 N.Y.S.2d 594,120 A.D.3d 458,2014 N.Y. Slip Op. 05616
• Parties: Daniel H. BENNETT, et al., appellants, v. PATEL CATSKILLS, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 458

990 N.Y.S.2d 594

2014 N.Y. Slip Op. 05616

Daniel H. BENNETT, et al., appellants,

v.PATEL CATSKILLS, LLC, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 6, 2014.

Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti III and Damon J. Velardi of counsel), for appellants.

Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [Jennifer M. Belk], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Rosa, J.), dated January 30, 2013, which denied their motion pursuant to CPLR 3215 for leave to enter judgment on the issue of liability against the defendant upon its failure to appear or answer the complaint, and granted the defendant's cross motion pursuant to CPLR 3012(d) to compel them to accept service of the answer.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for a hearing on the issue of whether the defendant received notice of the certified mail sent to it by the New York Secretary of State, and thereafter, for a new determination of the plaintiffs' motion for leave to enter a default judgment on the issue of liability against the defendant, and of the defendant's cross motion pursuant to CPLR 3012(d) to compel the plaintiffs to accept service of the answer.

The process server's affidavit of service created a rebuttable presumption that the plaintiffs served the defendant by delivering a copy of the summons and complaint to the Secretary of State ( seeCPLR 311–a[a]; Limited Liability Company Law § 303; Kolonkowski v. Daily News, L.P., 94 A.D.3d 704, 705, 941 N.Y.S.2d 663;Thas v. Dayrich Trading, Inc., 78 A.D.3d 1163, 1164, 913 N.Y.S.2d 269;Trini Realty Corp. v. Fulton Ctr. LLC, 53 A.D.3d 479, 861 N.Y.S.2d 743). In opposition, the defendant denied receipt of the summons and complaint. The fact that the summons and complaint, which had been sent by certified mail, return receipt requested, to the address on file with the New York Secretary of State, had been returned to the Secretary of State as “unclaimed,” raised a triable issue of fact as to whether the defendant received notice of the certified mail sent to it by the Secretary of State, and the matter must be remitted for a hearing and new...