BANK 2013 SC4 v. 532 187 LLC (2019)

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered June 30, 2017, which granted defendant 532 West 187 Realty LLC's (532 West) motion to vacate the default judgment entered against it, unanimously affirmed, with costs.

We find that the motion court properly exercised its discretion pursuant to CPLR 317.  Taken together, the affidavits submitted by 532 West established that it never received notice of the summons because its agent for service never forwarded the same to it (cf. John v. Arin Bainbridge Realty Corp., 147 A.D.3d 454, 455–456, 46 N.Y.S.3d 589 [1st Dept. 2017] ).  Plaintiff does not dispute that the affidavits also established that 532 West did not otherwise have notice of the action.  Further, there was no indication in the record that 532 West deliberately evaded service (cf. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138, 141–143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ).  532 West showed that it had a potentially meritorious defense to the foreclosure action by submitting a discharge of mortgage that stated that the subject mortgage had been satisfied (Reale v. Tsoukas, 146 A.D.3d 833, 835, 45 N.Y.S.3d 148 [2d Dept. 2017] ).

We decline to hear plaintiff's arguments, made for the first time on appeal, that the motion to vacate was untimely and that 532 West failed to establish its meritorious defense through an affidavit from an individual with knowledge of the facts.

We have considered the remaining arguments and find them unavailing.