RES IPSA USA LLC v. Titan Restoration Inc., Defendant–Respondent. (2026)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about December 3, 2025, which granted defendant Titan Restoration Inc.'s motion for leave to serve a late answer and denied plaintiff's motion for a default judgment against Titan as academic, unanimously affirmed, without costs.

Plaintiff brought this action against defendants for nuisance it alleged was caused by idle scaffolding constructed around the building where its business is located.  Following multiple attempts at service of process on Titan at addresses it had registered with the New Jersey and New York Departments of State, plaintiff effectuated service of process on Titan via service on the New York Secretary of State pursuant to Business Corporation Law § 306.  Titan failed to appear until after plaintiff moved for a default judgment against them.

Titan's failure to keep a valid address for service of process on file with the Secretary of State does not constitute a reasonable excuse for its default under CPLR 3012(d) (see Majada Inc. v. E & A RE Capital Corp., 205 A.D.3d 648, 649, 170 N.Y.S.3d 18[1st Dept. 2022] ).  Nevertheless, Titan's motion for leave to file a late answer was properly granted under CPLR 317.

Initially, even though CPLR 317 was not mentioned on the face of Titan's order to show cause, Titan referred to that section in its motion papers and set forth arguments in support thereof (see Ricciardi v. State of New York, 201 A.D.3d 577, 578, 162 N.Y.S.3d 323 [1st Dept. 2022], lv denied 38 N.Y.3d 914, 2022 WL 4241265 [2022] ).

On the merits, Titan demonstrated that it did not personally receive notice of the summons in time to defend and that it had a meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138, 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986];  Shanker v. 119 E. 30th, Ltd., 63 A.D.3d 553, 554, 881 N.Y.S.2d 98 [1st Dept. 2009] ).  It is undisputed that plaintiff did not personally deliver the summons to defendant and instead effected service on the Secretary of State, and Titan's president averred that it only learned about this action in mid-August 2025.  There is no evidence that Titan deliberately attempted to avoid service (see Eugene Di Lorenzo, Inc., 67 N.Y.2d at 143, 501 N.Y.S.2d 8, 492 N.E.2d 116).

Titan also set forth a meritorious defense to the action through its president's affidavit and accompanying exhibits, including Department of Building work permits that it claims show that it played no role in the construction or maintenance of the scaffolding at issue (see Bokum v. BUFNY II Assoc., L.P., 238 A.D.3d 559, 560, 235 N.Y.S.3d 13 [1st Dept. 2025] ).  Finally, other factors militate in favor of acceptance of its late answer, including the court's preference for resolution on the merits and the lack of prejudice to plaintiff (see Gordon Law Firm, P.C. v. Premier DNA Corp., 205 A.D.3d 416, 417, 165 N.Y.S.3d 691 [1st Dept. 2022] ).

In light of the foregoing, the court properly denied plaintiff's motion for a default judgment as academic.