JOSEPH v. JAG LLC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Sharon Bourne–Clarke, J.), dated November 30, 2023.  The order granted the defendant's motion pursuant to CPLR 317 to vacate a judgment of the same court dated February 2, 2023, entered upon its default in appearing or answering the complaint, which is in favor of the plaintiff and against the defendant, and to extend the defendant's time to serve an answer.

ORDERED that the order is affirmed, with costs.

In March 2020, the plaintiff commenced this action against the defendant, 5 Jag, LLC, to recover damages for personal injuries the plaintiff alleged she sustained when she slipped and fell on snow and ice on a sidewalk abutting real property located at 1600 Utica Avenue in Brooklyn.  The plaintiff alleged the defendant owned the subject property.  The defendant was served with the summons and complaint via the Secretary of State.  Subsequently, the plaintiff moved for leave to enter a default judgment against the defendant based on the defendant's failure to appear or answer the complaint.  In an order dated August 25, 2021, the Supreme Court granted the plaintiff's motion, and a judgment dated February 2, 2023, was entered in favor of the plaintiff and against the defendant in the principal sum of $250,000.

In April 2023, the defendant moved pursuant to CPLR 317 to vacate the judgment and to extend its time to serve an answer.  The plaintiff opposed.  By order dated November 30, 2023, the Supreme Court granted the defendant's motion.  The plaintiff appeals.  We affirm.

To vacate a default in answering or appearing pursuant to CPLR 317, a defendant must demonstrate that it was served with a summons other than by personal delivery, that it did not receive actual notice of the summons in time to defend, and that it has a potentially meritorious defense (see Bachvarov v. Khaimov, 224 A.D.3d 724, 726, 206 N.Y.S.3d 118;  NYCTL 2015–A Trust v. 731 Bergen, LLC, 172 A.D.3d 1391, 1392, 99 N.Y.S.3d 660).  “ ‘[T]here is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay’ ” (Bachvarov v. Khaimov, 224 A.D.3d at 726, 206 N.Y.S.3d 118 [internal quotation marks omitted], quoting Bing Fang Qiu v. Cameo Owners Corp., 172 A.D.3d 802, 803, 101 N.Y.S.3d 181;  see Beltran v. New York City Hous. Auth., 206 A.D.3d 873, 874, 171 N.Y.S.3d 127).

Here, the plaintiff effected service upon the defendant by delivering the summons and complaint to the Secretary of State.  However, the defendant's former counsel stated in an affidavit in support of the defendant's motion that the address on file with the Secretary of State for the purpose of service on the defendant was that of the former counsel's former law firm, which ceased maintaining an office at that address in 2011, and that he had not worked at that address since that time.  Moreover, the defendant's principal stated in an affidavit in support of the motion that the defendant did not learn of this action until one week prior to moving, inter alia, to vacate the judgment when its property manager was served with a marshal's notice of levy and sale pursuant to the judgment.  Thus, the defendant demonstrated that it was served with a summons and complaint other than by personal delivery and that it did not receive actual notice of the summons and complaint in time to defend the action (see Bachvarov v. Khaimov, 224 A.D.3d at 726, 206 N.Y.S.3d 118).

Moreover, the defendant established a potentially meritorious defense to the action.  The defendant demonstrated that it was snowing and that inclement weather conditions existed at the time of the accident, raising an issue as to whether the storm-in-progress rule applies to the facts of this case (see Colon v. New York City Tr. Auth., 201 A.D.3d 867, 868, 157 N.Y.S.3d 789).

Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 317 to vacate the judgment and to extend its time to serve an answer (see Bachvarov v. Khaimov, 224 A.D.3d at 726, 206 N.Y.S.3d 118).

DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.