Cruz v. Keter Residence, LLC

• Decision Date: 12 March 2014
• Citation: 115 A.D.3d 700,2014 N.Y. Slip Op. 01575,981 N.Y.S.2d 607
• Parties: Jose DELA CRUZ, appellant, v. KETER RESIDENCE, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 700

981 N.Y.S.2d 607

2014 N.Y. Slip Op. 01575

Jose DELA CRUZ, appellant,

v.KETER RESIDENCE, LLC, respondent.

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

March 12, 2014.

Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant.

Ronald P. Berman, New York, N.Y., for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Sweeney, J.), dated August 14, 2013, which denied his motion pursuant to CPLR 3215 for leave to enter a 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 for leave to serve and file a late answer.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment on the issue of liability against the defendant is granted, the defendant's cross motion for leave to serve and file a late answer is denied, and the matter is remitted to the Supreme Court, Kings County, for an inquest on the issue of damages.

In support of his motion for leave to enter a default judgment on the issue of liability, the plaintiff submitted proof of delivery of copies of the summons and complaint to the Secretary of State ( see CPLR 311–a[a]; Limited Liability Company Law § 303[a] ). He also submitted proof of the facts constituting the claim, and of the defendant's default in answering or appearing ( see CPLR 3215[f]; Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 941 N.Y.S.2d 679;C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 912 N.Y.S.2d 428;599 Ralph Ave. Dev., LLC v. 799 Sterling, Inc., 34 A.D.3d 726, 825 N.Y.S.2d 129).

To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense ( see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270;393 Lefferts Partners, LLC v. New York Ave. at Lefferts, LLC, 68 A.D.3d 976, 890 N.Y.S.2d 330). The defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse ( see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 143, 501 N.Y.S.2d 8, 492 N.E.2d 116;Sussman v. Jo–Sta Realty Corp., 99 A.D.3d 787, 788, 951 N.Y.S.2d 683;Castle v. Avanti, Ltd., 86 A.D.3d 531, 926 N.Y.S.2d 169;Yellow Book of N.Y., Inc. v. Weiss, 44 A.D.3d 755, 843 N.Y.S.2d 190;Ameritek Constr. Corp. v. Gas, Wash & Go, 247 A.D.2d 418, 419, 668 N.Y.S.2d 663).

Furthermore, the defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file, with the Secretary of State, the required biennial form that would have apprised the Secretary of State of its current address ( see Limited Liability Company Law § 301[e] ). Under ...