Thas v. Dayrich Trading, Inc.
| Decision Date | 30 November 2010 |
| Parties | Anojana THAS, et al., appellants, v. DAYRICH TRADING, INC., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Tracy & Stilwell, P.C., Staten Island, N.Y. (Rodney Stilwell of counsel), for appellants.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondents.
WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Spodek, J.), dated February 8, 2010, which granted those branches of the defendants' motion which were pursuant to, inter alia, CPLR 317 and 5015(a)(1) and (4), (a) to vacate an order of the same court dated October 26, 2009, granting the plaintiffs' unopposed motion, among other things, for leave to enter judgment against the defendant Dayrich Trading, Inc., on the issue of liability and, sua sponte, granting them leave to enter judgment against the defendant John Doe on the issue of liability, upon the defendants' default in appearing or answering the complaint, and (b) to compel them to accept the defendants' answer.
ORDERED that the order dated February 8, 2010, is modified, on the law, by deleting the provision thereof granting those branches of the defendants' motion which were to vacate so much of the order dated October 26, 2009, as granted theplaintiffs' unopposed motion for leave to enter judgment against the defendant Dayrich Trading, Inc., on the issue of liability, and substituting therefor a provision denying those branches of the defendants' motion; as so modified, the order dated February 8, 2010, is affirmed, with costs to the plaintiffs.
The Supreme Court should have denied that branch of the defendants' motion which was pursuant toCPLR 5015(a)(1) and (4) to vacate the default of the defendant Dayrich Trading, Inc. (hereinafter Dayrich), in appearing or answering the complaint. The plaintiffs established that they effected service upon Dayrich by delivering a copy of the summons and verified complaint to the Secretary of State ( see CPLR 311[a][1]; Business Corporation Law § 306; Commissioners of State Ins. Fund v. Nobre, Inc., 29 A.D.3d 511, 816 N.Y.S.2d 493; Nichols v. Richmond Ambulance Serv., 259 A.D.2d 741, 687 N.Y.S.2d 397). In opposition to the plaintiffs' showing in this regard, Dayrich did not contend that the address that it had on file with the Secretary of State was incorrect, and the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by service upon the Secretary of State ( see CPLR 311[a] [1]; Business Corporation Law § 306; Gartner v. Unified Windows, Doors & Siding, Inc., 71 A.D.3d 631, 632, 896 N.Y.S.2d 415; Coyle v. Mayer Realty Corp., 54 A.D.3d 713, 864 N.Y.S.2d 75; Trini Realty Corp. v. Fulton Ctr. LLC, 53 A.D.3d 479, 861 N.Y.S.2d 743).
Furthermore, the Supreme Court should also have denied that branch of the defendants' motion which was pursuant to CPLR 317 to vacate Dayrich's default in appearing or answering since Dayrich failed to demonstrate that it did not personally receive notice of the summons in time to defend the action ( see Commissioners of State Ins. Fund v. Nobre, Inc., 29 A.D.3d 511, 816 N.Y.S.2d 493; General Motors Acceptance Corp. v. Grade A Auto Body, Inc., 21 A.D.3d 447, 799 N.Y.S.2d 748; 96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468). The affidavit of service attesting that, on May 22, 2009, pursuant to CPLR 3215(g)(4), an assistant employed by the plaintiffs' attorney mailed additional copies of the summons and complaint to Dayrich at its correct business address, created a presumption of proper mailing and receipt, and Dayrich did not adequately rebut that presumption ( see Business Corporation Law § 306[b][2]; Cavalry Portfolio Servs., LLC v. Reisman, 55 A.D.3d 524, 525, 865 N.Y.S.2d 286; Levine v. Forgotson's Cent. Auto & Elec., Inc., 41 A.D.3d 552, 553, 840 N.Y.S.2d 598; Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 893, 894, 815 N.Y.S.2d 281).
Since Dayrich failed to demonstrate that it was entitled to vacatur of the order dated October 26, 2009, pursuant toCPLR 5015(a)(1), 5015(a)(4), or 317, the plaintiffs' alleged failure to comply...
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