TRINI REALTY CORP v. FULTON CENTER LLC (2008)

In an action, inter alia, to recover on a promissory note, the defendant appeals from a judgment of the Supreme Court, Kings County (Hurkin-Torres, J.), dated May 11, 2007, which, upon an order of the same court dated December 22, 2006, in effect, granting the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against it upon its default in appearing or answering the complaint, is in favor of the plaintiff and against it in the principal sum of $346,000.

ORDERED that the judgment is affirmed, with costs.

 In support of its motion pursuant to CPLR 3215 for leave to enter a judgment against the defendant upon its default in appearing or in answering the complaint, the plaintiff presented a process server's affidavit that was sufficient to create a presumption that service upon the defendant was effected by delivery of the summons and the verified complaint to the Secretary of State (see CPLR 311-a[a];  Limited Liability Company Law § 303[a];  Engel v. Lichterman, 62 N.Y.2d 943, 944-945, 479 N.Y.S.2d 188, 468 N.E.2d 26;  Commissioners of State Ins. Fund v. Nobre, Inc., 29 A.D.3d 511, 816 N.Y.S.2d 493;  Nichols v. Abbey Richmond Ambulance Serv., 259 A.D.2d 741, 687 N.Y.S.2d 397).   In addition, the plaintiff submitted proof of the facts constituting the claim and the default (see CPLR 3215[f];  Lipp v. Port Auth. of N.Y. & N.J., 34 A.D.3d 649, 824 N.Y.S.2d 671;  599 Ralph Ave. Dev., LLC. v. 799 Sterling Inc., 34 A.D.3d 726, 825 N.Y.S.2d 129;  Giovanelli v. Rivera, 23 A.D.3d 616, 804 N.Y.S.2d 817).

 In opposing the plaintiff's motion, the defendant contended that it did not receive notice of the summons in time to defend, and that it had a meritorious defense (see CPLR 317;  Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 469 N.Y.S.2d 74, 456 N.E.2d 1197;  Franklin v. 172 Aububon Corp., 32 A.D.3d 454, 819 N.Y.S.2d 785;  Brockington v. Brookfield Dev. Corp., 308 A.D.2d 498, 764 N.Y.S.2d 469;  Samet v. Bedford Flushing Holding Corp., 299 A.D.2d 404, 405, 749 N.Y.S.2d 566).   The defendant, however, did not contend that the address on file with the Secretary of State was incorrect, and the mere denial of receipt of the summons and the complaint was insufficient to rebut the presumption of proper service created by the affidavit of service (see Commissioners of State Ins. Fund v. Nobre, Inc., 29 A.D.3d 511, 816 N.Y.S.2d 493;  Truscello v. Olympia Constr., 294 A.D.2d 350, 741 N.Y.S.2d 709;  De La Barrera v. Handler, 290 A.D.2d 476, 736 N.Y.S.2d 249).

The defendant's remaining contentions are without merit.