LEVINE v. FORGOTSON CENTRAL AUTO ELECTRIC INC (2007)

In an action to recover damages for breach of contract and negligence, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Jonas, J.), dated December 5, 2005, which denied their motion pursuant to CPLR 3215 for leave to enter judgment against the defendant upon its default in appearing or answering the complaint, and granted those branches of the defendant's cross motion which were pursuant to CPLR 5015(a)(1) to vacate its default in appearing or answering the complaint and for leave to serve and file a late answer.

ORDERED that the order is reversed, on the law and in the exercise of discretion, the plaintiffs' motion pursuant to CPLR 3215 for leave to enter judgment against the defendant upon its default in appearing or answering the complaint is granted, those branches of the defendant's cross motion which were pursuant to CPLR 5015(a)(1) to vacate its default in appearing or answering the complaint and for leave to serve a late answer are denied, and the matter is remitted to the Supreme Court, Nassau County, for an inquest on the issue of damages.

The Supreme Court improvidently exercised its discretion in granting those branches of the defendant's cross motion which were pursuant to CPLR 5015(a)(1) to vacate its default in appearing or answering the complaint and for leave to serve a late answer (see Sime v. Ludhar, 37 A.D.3d 817, 830 N.Y.S.2d 775).   The mere denial by the defendant's president of service of the summons and the complaint was insufficient to rebut the presumption of proper service on the Secretary of State raised by the affidavit of service (see Business Corporation Law § 306[b][1];  Carrenard v. Mass, 11 A.D.3d 501, 782 N.Y.S.2d 810).   Furthermore, even if we were to consider the facts contained in the affirmation of the defendant's attorney, which were improperly submitted for the first time in reply (see Jackson-Cutler v. Long, 2 A.D.3d 590, 768 N.Y.S.2d 360), that there was an incorrect address for service of process on file with the Secretary of State, under the circumstances of this case, this would not constitute a reasonable excuse for the defendant's delay in appearing or answering the complaint (see Franklin v. 172 Aububon Corp., 32 A.D.3d 454, 819 N.Y.S.2d 785;  Santiago v. Sansue Realty Corp., 243 A.D.2d 622, 623, 663 N.Y.S.2d 235;  Paul Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622, 511 N.Y.S.2d 58).

Moreover, even if the defendant's cross motion were treated as one pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 143, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Mann-Tell Realty Corp. v. Cappadora Realty Corp., 184 A.D.2d 497, 498, 586 N.Y.S.2d 755), the defendant failed to demonstrate that it did not personally receive notice of the summons in time to defend the action (see General Motors Acceptance Corp. v. Grade A Auto Body, Inc., 21 A.D.3d 447, 799 N.Y.S.2d 748;  96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468;  Waldon v. Plotkin, 303 A.D.2d 581, 756 N.Y.S.2d 765).   The defendant did not adequately rebut the presumption that it received notice of the summons pursuant to CPLR 3215(g)(4) approximately two weeks after service of the summons and the complaint in the regular course of the mail (see Business Corporation Law § 306[b][2];  Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 893, 815 N.Y.S.2d 281;  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).

In addition, the Supreme Court should have granted the plaintiffs' motion pursuant to CPLR 3215 for leave to enter judgment against the defendant since the plaintiffs submitted proof of service of the summons and the complaint, of the facts constituting the claim, and of the default (see 3215 [f];  599 Ralph Ave. Dev., LLC v. 799 Sterling Inc., 34 A.D.3d 726, 825 N.Y.S.2d 129;  Lipp v. Port Auth. of N.Y. & N.J., 34 A.D.3d 649, 824 N.Y.S.2d 671;  Giovanelli v. Rivera, 23 A.D.3d 616, 804 N.Y.S.2d 817).