OUR CHILDREN FOUNDATION INC v. Madison Title Agency, Inc., Intervenor-Respondent. (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about July 8, 2025, which, to the extent appealed from, denied defendant's motion to vacate a default judgment against it, unanimously affirmed, without costs.

Supreme Court properly determined that its initial decision granting the motion of plaintiff for a default judgment against defendant was not a nullity.  Although plaintiff did rely on a noncompliant affirmation in support of its motion for a default judgment (see CPLR 2106[a] ), that defect may be overlooked in the court's discretion because plaintiff later corrected its mistake when it submitted a substantially similar affirmation with the required oath in opposition to defendant's motion for vacatur (see Hopwin Lingerie Co. Ltd. v. Sasson, 214 A.D.3d 596, 597, 186 N.Y.S.3d 621 [1st Dept. 2023] ).

Supreme Court properly determined that vacatur was not warranted pursuant to CPLR 317.  Defendant failed to establish that it lacked actual notice in time to defend (see State Farm Mut. Auto. Ins. Co. v. Pedro Torres–Jimenez, M.D., P.C., 238 A.D.3d 551, 552, 232 N.Y.S.3d 140 [1st Dept. 2025] ).  Defendant engaged in settlement discussions with plaintiff three weeks before plaintiff filed its motion for a default judgment, which constitutes actual notice of the action in time to defend (see Sanchez v. Avuben Realty LLC, 78 A.D.3d 589, 590, 912 N.Y.S.2d 185 [1st Dept. 2010] ).

Supreme Court properly determined that vacatur was not warranted pursuant to CPLR 5015(a)(1).  Defendant's failure to update its service address with the Secretary of State is not a reasonable excuse for its default (see Hasnat v. ADP Realty Ltd., 231 A.D.3d 539, 539, 218 N.Y.S.3d 320 [1st Dept. 2024] ).

Plaintiff's failure to comply with CPLR 3215(g)(4)(i) by not sending an additional mailing to defendant's last known address does not necessitate reversal (see C3 Data, LLC v. 212 Media Group Inc., 234 A.D.3d 514, 515, 225 N.Y.S.3d 104 [1st Dept. 2025] ).  A defendant must establish complete grounds for vacatur, including both a reasonable excuse and a meritorious defense (see Gourvitch v. 92nd & 3rd Rest Corp., 146 A.D.3d 431, 431, 44 N.Y.S.3d 403 [1st Dept. 2017] ).  As discussed above, defendant has not established a reasonable excuse.

In light of the foregoing, we need not reach the issue of whether defendant demonstrated a meritorious defense (see Davis v. Blev Realty LLC, 217 A.D.3d 563, 564, 191 N.Y.S.3d 403 [1st Dept. 2023] ).