Davis v. Blev Realty LLC

• Docket Number: Index 27494/16,545,Case No. 2022-02645N
• Decision Date: 22 June 2023
• Parties: Shaquell Davis, Plaintiff-Respondent, v. Blev Realty LLC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03403

Shaquell Davis, Plaintiff-Respondent,
v.
Blev Realty LLC, Defendant-Appellant.

No. Index 27494/16, Appeal No. 545, Case No. 2022-02645N

Supreme Court of New York, First Department

June 22, 2023

Sukenik, Segal & Graff, P.C., New York (Douglas Segal of counsel), for appellant.

Law Offices of Bernard D'Orazio & Associates, P.C., New York (Steven G. Yudin of counsel), for respondent.

Before: Kern, J.P., Friedman, Mendez, Rodriguez, JJ.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered May 10, 2022, which denied defendant's motion to vacate a default judgment entered against it, unanimously affirmed, without costs.

Defendant's motion to vacate the default judgment was correctly denied, as the record shows that its failure to personally receive notice of the summons was the result of a deliberate attempt to avoid such notice (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 143 [1986]). While defendant submitted an affidavit of its managing member, Charles Abramson, averring that the address maintained with the Secretary of State for service of process was the home address of defendant's organizer and former member (see Limited Liability Company Law § 301[c]; Business Corporation Law § 306[b][1]), defendant offered no reasonable explanation as to why the same outdated address was contained in the three most recent biennial statements filed with the Secretary of State, the last two of which Abramson himself verified. Under the circumstances, defendant's failure to maintain a proper address with the Secretary of State raises an inference of a deliberate attempt to avoid service (see John v Arin Bainbridge Realty Corp., 147 A.D.3d 454, 455-456 [1st Dept 2017]; Widgren v 313 E. 9th Assoc., 295 A.D.2d 146 [1st Dept 2002]).

In view of the foregoing, we need not reach the issue of whether defendant demonstrated a meritorious defense (see CPLR 317). In any event, the affidavit of its building superintendent vaguely averring that he would inspect the building on a daily basis and promptly remedy any defects was insufficient to establish that defendant lacked notice of the broken step on which plaintiff allegedly tripped and fell (see White v MP 40 Realty Mgt. LLC, 187 A.D.3d 561, 562 [1st Dept 2020]; Hill v Manhattan N. Mgt., 164 A.D.3d 1187, 1187 [1st Dept 2018]).

Contrary to defendant's contention, plaintiff's motion for a default judgment satisfied the requirements of...