John v. Arin Bainbridge Realty Corp.

• Decision Date: 07 February 2017
• Citation: 147 A.D.3d 454,46 N.Y.S.3d 589,2017 N.Y. Slip Op. 00934
• Parties: Eleanor JOHN, Plaintiff–Respondent, v. ARIN BAINBRIDGE REALTY CORP., Defendant–Appellant, Samcity Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 454

46 N.Y.S.3d 589

2017 N.Y. Slip Op. 00934

Eleanor JOHN, Plaintiff–Respondent,

v. ARIN BAINBRIDGE REALTY CORP., Defendant–Appellant,Samcity Inc., Defendant.

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

Feb. 7, 2017.

Profeta & Eisenstein, New York (Fred R. Profeta, Jr. of counsel), for appellant.

Michael P. Bloomfield, Bronx, for respondent.

TOM, J.P., RENWICK, SAXE, FEINMAN, GESMER, JJ.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 19, 2015, which, inter alia, denied defendant Arin Bainbridge Realty Corp.'s (Arin) motion to vacate the default judgment against it, pursuant to CPLR 317 and 5015(a)(1), unanimously affirmed, without costs.

"To obtain relief from a default judgment [under CPLR 5015(a)(1) ], a party is required to demonstrate both a reasonable excuse for the default and a meritorious claim or defense to the action" (Bobet v. Rockefeller Ctr., N., Inc., 78 A.D.3d 475, 475, 911 N.Y.S.2d 43 [1st Dept.2010] ; CPLR 5015[a][1] ). However, "[t]he failure of a corporate defendant to receive service of process due to breach of the obligation to keep a current address on file with the Secretary of State (see Business Corporation Law § 306 ) does not constitute a reasonable excuse" (Crespo v. A.D.A. Mgt., 292 A.D.2d 5, 9–10, 739 N.Y.S.2d 49 [1st Dept.2002] ). Thus, the court properly denied Arin's motion to vacate the default judgment under CPLR 5015(a)(1).

CPLR 317 provides that "[a] person served with a summons other than by personal delivery to him or to his agent for service under [CPLR] 318... who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment ... upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense." No showing of a reasonable excuse is necessary (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 [1986] ). Service upon a corporation through the Secretary of State, pursuant to Business Corporation Law § 306, is not "personal service" (id. at 142, 501 N.Y.S.2d 8, 492 N.E.2d 116 ).

Viewing the totality of the record, we find that the court providently exercised its discretion to deny vacatur of the default judgment under CPLR 317. Numerous anomalies in the record support the court's inference that Arin sought to deliberately avoid service. For example, both the address given to the Secretary of State, 3161 Bainbridge Avenue, Bronx County (the Bainbridge address), and on the deed registration for the subject property, 320 Nassau Blvd, Garden City, were purportedly incorrect due to errors by Arin's real estate counsel at the time Arin purchased the Bainbridge property, yet Arin never sought an affidavit from counsel to explain the...