CONSTRUCTION OF NY INC v. [And a Third-Party Action]. (2007)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered February 14, 2006, which denied the motion of defendants Commercial Facades, also known as Commercial Facade Incorporated, and Miller Construction Co., Inc. to vacate an order of default, unanimously affirmed, without costs.

Appellants claim, as a reasonable excuse for their non-appearance, that they never received any copy of the process in the action because their address on file with the Secretary of State was obsolete.   However, the failure to file a change of address with the Secretary of State generally is not a reasonable excuse under CPLR 5015(a)(1) (Crespo v. A.D.A. Mgt., 292 A.D.2d 5, 739 N.Y.S.2d 49 [2002] ).   While such a failure does not constitute a per se barrier to vacatur, and some flexibility may be allowed by the courts (Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ), here flexibility is not warranted.   At least three years passed during which the appellants' address on file with the Secretary of State was not updated, and appellants' principal, while denying that he had received the default order, acknowledged that it had been mailed to his home address (see KPG Inc. v. Salinas Group Ltd., 11 A.D.3d 338, 783 N.Y.S.2d 543 [2004] ).