Latham Sparrowbush Associates v. Cohoes Indus. Terminal, Inc.
| Citation | 114 A.D.2d 584,494 N.Y.S.2d 195 |
| Parties | LATHAM SPARROWBUSH ASSOCIATES, Respondent, v. COHOES INDUSTRIAL TERMINAL, INC., Appellant. |
| Decision Date | 10 October 1985 |
| Court | New York Supreme Court Appellate Division |
Leon C. Baker, White Plains, for appellant.
Zubres, D'Agostino & Hoblock, Albany (David M. Siegal, Albany, of counsel), for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered May 21, 1985 in Albany County, which denied defendant's motion to vacate a default judgment entered against it.
By service of the summons and complaint on the Secretary of State on February 13, 1985, plaintiff commenced this action against defendant seeking specific performance of a provision in a lease which granted plaintiff, as lessor, the right to terminate the lease upon certain conditions. Defendant failed to answer and, by order entered April 19, 1985, plaintiff's motion for default judgment was granted. Defendant moved to open the default, alleging that it had not received the summons and complaint and that it had two defenses, viz., the failure to join a necessary party and the invalidity of the lease provision under the rule against perpetuities. Special Term denied the motion upon the ground that an attorney's affidavit addressing the merits of the purported defenses was patently deficient. We affirm, but for a different reason.
It appears from the record that defense counsel is also an officer of defendant and that the allegations in his affidavit are based upon personal knowledge of the facts and circumstances. Accordingly, his affidavit and that of another corporate officer are not patently deficient.
Nevertheless, the order denying defendant's motion to vacate its default should be affirmed. In Cristo Bros. v. Cristo, Inc., 91 A.D.2d 807, 458 N.Y.S.2d 50, appeal dismissed 59 N.Y.2d 760, lv. dismissed 60 N.Y.2d 554, 467 N.E.2d 1029, 454 N.E.2d 1318, this court held that "[c]orporations are obligated to keep a current address on file with the Secretary of State and the failure to receive copies of process served upon the Secretary of State due to a breach of this obligation will not constitute a 'reasonable excuse' for a corporation seeking to vacate a default judgment under CPLR 5015 (subd [a] )" (accord, Di Lorenzo, Inc. v. Dutton Lbr. Co., 108 A.D.2d 1004, 485 N.Y.S.2d 393, appeal dismissed 65 N.Y.2d 785). The record herein establishes that the excuse...
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In re Cohoes Indus. Terminal, Inc.
...entered an order denying the debtor permission to appeal to the Court of Appeals. Latham Sparrowbush Associates v. Cohoes Industrial Terminal, Inc., 114 A.D.2d 584, 494 N.Y.S.2d 195 (3rd Dep't 1985). 13. On February 13, 1986, the New York Court of Appeals denied the debtor's appeal from the......
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Baker v. Latham Sparrowbush Associates
...denied CIT's motion to vacate the default on May 21, 1985, and that order was affirmed in Latham Sparrowbush Assocs. v. Cohoes Indus. Term., Inc., 114 A.D.2d 584, 494 N.Y.S.2d 195 (3d Dep't 1985), appeal dism'd, 67 N.Y.2d 736, 500 N.Y.S.2d 100, 490 N.E.2d 1226 A third related action was com......
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Baker v. Latham Sparrowbush Associates
...merits was properly executed because Leon Baker had personal knowledge of the facts alleged. Latham Sparrowbush Assocs. v. Cohoes Indus. Term., Inc., 114 A.D.2d 584, 494 N.Y.S.2d 195 (3d Dept.1985), app. dism'd, 67 N.Y.2d 736, 500 N.Y.S.2d 100, 490 N.E.2d 1226 (1986). The court nevertheless......
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Baker v. Latham Sparrowbush Associates
...fault with the affidavit, because, it said, Leon had personal knowledge of the facts alleged. Latham Sparrowbush Assocs. v. Cohoes Indus. Terminal, Inc., 114 A.D.2d 584, 494 N.Y.S.2d 195 (1985). The appellate court nonetheless affirmed the denial of the motion to vacate, albeit on different......