FISHER v. LEWIS CONSTRUCTION NYC INC (2020)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered June 18, 2019, which denied defendant's motion to vacate the default judgment against it, unanimously affirmed, with costs.

Defendant failed to establish a reasonable excuse for its default (see CPLR 5015[a][1] ).  Plaintiff properly served defendant corporation “by means of service upon the Secretary of State, and the records indicate that [it] was a viable corporation at the time” (Residential Bd. of Mgrs. of 99 Jane St. Condominium v. Rockrose Dev. Corp., 17 A.D.3d 194, 194, 796 N.Y.S.2d 35 [1st Dept. 2005] ).  Service of process was complete when plaintiff served the Secretary of State (Business Corporation Law § 306[b][1] ), “irrespective of whether the process subsequently reache[d] the corporate defendant” (Associated Imports v. Amiel Publ., 168 A.D.2d 354, 354, 562 N.Y.S.2d 678 [1st Dept. 1990], appeal dismissed 77 N.Y.2d 873, 568 N.Y.S.2d 915, 571 N.E.2d 85 [1991] ).  Defendant's conclusory denial of receipt of service fails to rebut the presumption of proper service created by the affidavit of service (see Matter of de Sanchez, 57 A.D.3d 452, 454, 870 N.Y.S.2d 24 [1st Dept. 2008] ), and defendant's excuse that its registered address, where plaintiff mailed “additional service” and subsequent notices (Business Corporation Law § 306[b][2];  see CPLR 3215[g][4][I] ), was not a reliable mail drop, is unavailing.  By its own account, defendant's failure to answer appears to have been willful and dilatory (see John Wiley & Sons, Inc. v. Grossman, 132 A.D.3d 559, 18 N.Y.S.3d 610 [1st Dept. 2015] ).

Defendant also failed to show a lack of actual notice of the action (see CPLR 317).  Both its principal and its attorney acknowledged they had actual notice before plaintiff served the Secretary of State, thereby giving it sufficient time to defend (see Matter of Renaissance Economic Dev. Corp. v. Jin Hua Lin, 126 A.D.3d 465, 465, 2 N.Y.S.3d 787 [1st Dept. 2015], lv dismissed 26 N.Y.3d 953, 38 N.E.3d 815 [2015] ).