Rifenburg v. Liffiton Homes, Inc.

• Decision Date: 29 January 1985
• Citation: 486 N.Y.S.2d 529,107 A.D.2d 1015
• Parties: Gerald T. RIFENBURG and Edith J. Rifenburg, Respondents, v. LIFFITON HOMES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 529

486 N.Y.S.2d 529

107 A.D.2d 1015

Gerald T. RIFENBURG and Edith J. Rifenburg, Respondents, v. LIFFITON HOMES, INC., Appellant.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1985.

Grove, Hogan, Hogan & Douglas by Corey Hogan, Lockport, for appellant.

Farner & Farner, by William Farner, Buffalo, for respondents.

Before DILLON, P.J., and HANCOCK, CALLAHAN, DOERR, and SCHNEPP, JJ.

MEMORANDUM:

Following service of the summons upon defendant corporation pursuant to section 306 of the Business Corporation Law, and the subsequent entry of a default judgment in favor of plaintiffs, Special Term denied defendant's motion, made pursuant to CPLR 5015(a) to be relieved of its default. On appeal, defendant argues that under CPLR 317 it should be permitted to defend the action. Although it is well settled that issues raised for the first time on appeal ordinarily should not be considered (Rice v. Ritz Assoc., 58 N.Y.2d 923, 460 N.Y.S.2d 510, 447 N.E.2d 58), here both the moving and answering papers on the motion before Special Term presented factual averments which are peculiarly related to the provisions of CPLR 317 and we deem it appropriate to review the motion as having been made under that section, as well as under CPLR 5015(a)(1) (Brac Constr Corp. v. Di-Com Corp., 51 A.D.2d 740, 379 N.Y.S.2d 483).

Service upon the defendant was properly made by service of a summons with notice, in duplicate, upon the Secretary of State (Business Corporation Law § 306, supra). The Secretary of State mailed one copy of the process by certified mail, return receipt requested, to the defendant at the address on file with the Secretary of State. The mailing was returned "unclaimed". In its affidavit in support of its timely motion to vacate the default, defendant demonstrated a meritorious defense and stated that it never received a copy of the process. It is not disputed, however, that defendant continues to conduct business at the address filed with the Secretary of State.

A defendant's right to defend a suit when it is shown that it "did not personally receive notice of the summons in time to defend" is given strong protection by CPLR 317 without the necessity of showing excusable default (Zuppa v. Bison Drywall & Insulation Co., 93 A.D.2d 997, 462 N.Y.S.2d 83; Meyer v. Fisher & Sons Dental Lab., 90 A.D.2d 889, 456 N.Y.S.2d 520; Cecelia v. Colonial Sand & Stone Co., 85 A.D.2d 56, 448 N.Y.S.2d 617). The statute was not intended, however, to permit a corporate defendant to ignore notice of certified mail and leave such mail unclaimed at the post office (see Cascione v. Acme Equip. Corp., 23 A.D.2d 49, 258 N.Y.S.2d 234). We hold, therefore, that where a corporate defendant has received notice of certified...