Lucy Syvarth, Plaintiff, v. GENTIANA CAMAJ 53 SMOKER BOX CORP SMOKERS BOX 53 WEST CENTRAL LLC JOHN JANE DOES 10 XYZ CORPS 10 (2026)

The following papers, numbered 1-2, were read and considered in connection with Defendant 53 WEST CENTRAL LLC's Order to Show Cause (Motion Seq. No. 2) for an Order

(1) vacating the default order and Judgment dated and entered on April 3, 2026 entered against Defendant 53 WEST CENTRAL LLC and the Decision and Order dated October 7, 2025 and entered October 8, 2025, pursuant to Civil Practice Law and Rules §§ 5015(a)(1) and § 317; (2) vacating the underlying default of Defendant 53 WEST CENTRAL LLC, and granting said Defendant leave to interpose the proposed Verified Answer annexed to the accompanying Affirmation (Exhibit D); and (3) granting such other and further relief as this Court deems just and proper:

PAPERS NUMBERED

Order to Show Cause (Motion Seq. No. 2)/Affirmation of Samuel Katz, Esq./

Exhibits A-D/Affirmation of Chaim Silber1

Affirmation of KellyAnn Rubino, Esq./Exhibits 1-9/Memorandum of Law in

Opposition2

Upon the foregoing papers, the Court now rules as follows:

PROCEDURAL HISTORY

The instant action was commenced on December 27, 2024, by Summons and Verified Complaint alleging one (1) cause of action asserting that the Plaintiff was injured when she was bit by a dog owned by Defendant GENTIANA CAMAJ [hereinafter CAMAJ] on May 9, 2024, at Defendant SMOKER's BOX located at 53 West Central Ave, Pearl River, New York, a store owned by Defendant PJETER P. BUSHATI [hereinafter BUSHATI]. See NYSCEF Doc. No. 1, ¶ 5.

On March 3, 2025, the Plaintiff filed a Verified Amended Complaint alleging two (2) causes of action: (1) First Cause of Action — Negligence as to Defendants BUSHATI and CAMAJ; (2) Second Cause of Action — Negligence by Vicarious Liability as to Defendant 53 SMOKER BOX CORP.; (3) Third Cause of Action — Negligence as to Defendant 53 WEST CENTRAL LLC. See NYSCEF Doc. No. 3. Defendant BUSHATI was served on March 8, 2025, pursuant to Civil Practice Law and Rules § 308(2) by service on "Aziz Alsaide, owner" at 53 W. Central Ave, Pearl River, New York. See NYSCEF Doc. No. 4. Also, Defendant BUSHATI was served on March 18, 2025, pursuant to Civil Practice Law and Rules § 308(2) by service on "John Doe, Refused Name" at 166 Tibbets Road, Yonkers, New York. See NYSCEF Doc. No. 8. Defendant CAMAJ was served on March 20, 2025, pursuant to Civil Practice Law and Rules § 308(2) by service on "John Doe, Refused Name, Father" at 166 Tibbetts Road, Yonkers, New York. See NYSCEF Doc. No. 5. Defendants 53 SMOKER BOX CORP d/b/a SMOKERS BOX [hereinafter SMOKERS BOX], 53 WEST CENTRAL LLC [hereinafter 53 WEST CENTRAL] was served on March 8, 2025, by service on "Aziz Alsaide, owner" and "Managing Agent" at 53 W. Central Ave., Pearl River, New York. See NYSCEF Doc. No. 6. Defendant SMOKERS BOX was also served on March 12, 2025, pursuant to Business Corporation Law § 306 by service on the Office of the Secretary of State, of the State of New York. See NYSCEF Doc. No. 9. Defendant 53 WEST CENTRAL was served on March 12, 2025, pursuant to Limited Liability Company Law § 303 by service on the Office of the Secretary of State, of the State of New York. See NYSCEF Doc. No. 10. Despite service none of the Defendants moved, appeared or sought an extension of time to appear.

Plaintiff filed the instant motion for default judgment (Motion Seq. No. 1) as to all Defendants. See NYSCEF Doc. Nos. 11-22. On October 9, 2025,¹ the Honorable Hal B. Greenwald, J.S.C. (retired) issued a Decision and Order granting Plaintiff's motion for default judgment as to all Defendants. See NYSCEF Doc. No. 23. Plaintiff filed a Notice of Entry on October 9, 2025, and served same on all of the Defendants including movant 53 WEST CENTRAL. See NYSCEF Doc. Nos. 24-25. As per the October 9, 2025, Affirmation of Service, Defendant 53 WEST CENTRAL LLC was served a copy of Judge Greenwald's Decision and Order at 53 W. Central Avenue, Pearl River, New York. See NYSCEF Doc. No. 25. Plaintiff filed a Note of Issue without a jury and a Certificate of Readiness on October 17, 2025. See NYSCEF Doc. No. 26.

On February 17, 2026, Plaintiff's counsel e-filed a letter requesting the undersigned schedule an inquest as to damages. See NYSCEF Doc. No. 29. The undersigned scheduled an inquest for March 25, 2026, directed to upload all proposed exhibits and certified medical records, a statement of proposed disposition on or before March 4, 2026, and directed Plaintiff to notice all Defendants. See NYSCEF Doc. No. 20. On March 4, 2026, Plaintiff filed their Proposed Disposition and exhibits in anticipation of the March 25, 2026, Inquest. See NYSCEF Doc. Nos. 31-38. Plaintiff filed an Affirmation of Service indicating that on March 4, 2026, all Defendants were served with the Proposed Disposition and exhibits for the scheduled Inquest. See NYSCEF Doc. No. 39. Again, Defendant 53 WEST CENTRAL was served at 53 West Central LLC, Pearl River, New York. See NYSCEF Doc. No. 39.

On March 25, 2026, the undersigned held an Inquest and after testimony from Plaintiff and review of admitted exhibits the Plaintiff was awarded $200,000 in damages. Plaintiff was directed to submit a Proposed Judgment on or before April 3, 2026. On April 2, 2026, Plaintiff submitted a Proposed Judgment which was signed by the undersigned on April 3, 2026. See NYSCEF Doc. Nos. 42-43. Plaintiff served the signed Judgment and Notice of Entry on all Defendants on April 6, 2026; Defendant 53 WEST CENTRAL LLC was again served at 53 West Central Ave, Pearl River, New York. See NYSCEF Doc. No. 45.

On August 3, 2026, Defendant 53 WEST CENTRAL LLC filed the instant motion seeking an Order vacating the Default Order and Judgment entered on April 3, 2026, as to Defendant 3 WEST CENTRAL LLC and the Decision and Order granting a Judgment dated October 7, 2025 (entered on October 8, 2025). See NYSCEF Doc. Nos. 46-53. Plaintiff opposed. See NYSCEF Doc. Nos. 55-64.

ARGUMENTS

Defendant's Arguments in Support of the Order to Show Cause

Defendant 53 WEST CENTRAL contends that they are entitled to vacatur pursuant to Civil Practice Law and Rules §§ 317 and 5015(a)(1).

Vacatur Pursuant to Civil Practice Law and Rules § 317

Defendant, through the Affirmation of Chaim Silber, contends that he is the owner of the building located at 53 West Central Avenue, Pearl River, New York and leases the entire building, which includes two (2) residential tenants on the upper floors and a retail smoke shop. Silber asserts in his Affirmation that the building is leased to Defendant SMOKER BOX and that Defendant 53 WEST CENTRAL does not maintain any corporate office, personnel or business operations at the subject premises, 53 West Central Avenue, and in fact does not have a mailbox at the location since it does not receive its mail there. Further, the Silber Affirmation argues that Defendant 53 WEST CENTRAL's involvement with the subject building is limited to an "ownership interest."

Defendant 53 WEST CENTRAL concedes the building's address, 53 West Central Avenue, Pearl River, is the corporate address on file with the New York Department of State but asserts that the business address or any principal of the business's address has never actually been 53 West Central Avenue. As a result, 53 WEST CENTRAL contends that they do not conduct business or receive business correspondence at 53 West Central, Pearl River, New York. According to SILBER, when he purchased the subject location at 53 West Central, Pearl River, New York and formed Defendant 53 WEST CENTRAL he provided the Pearl River address to the New York Secretary of State but did not realize that by providing the address it was to be used for service of process. SILBER avers that he would not have provided the subject location address to the Secretary of State instead of the business address since the business never intended to receive mail and important legal documents at the subject location.

As a result, of the aforementioned assertion, SILBER avers that he never received the Summons and Complaint, the Amended Summons and Amended Verified Complaint, the motion for default judgment, or any other paper filed in the instant action. Further, Silber argues that the person served with the papers on behalf of Defendant 53 WEST CENTRAL, Aziz Alsaide, is the owner of 53 WEST CENTRAL's tenant, Defendant SMOKER BOX, and is not affiliated or associated with 53 WEST CENTRAL. Silber asserts that since Alsaide has no relationship with Defendant 53 WEST CENTRAL, he was never authorized to accept legal papers or anything else on the corporation's behalf. Additionally, Silber contends that Alsaide never gave him the papers he was served with throughout this action on behalf of Defendant 53 WEST CENTRAL. According to Silber he only became aware of the instant action when he conducted a title search in preparation for a refinance of the subject property.

Turning to the merits of the action, Defendant 53 WEST CENTRAL, asserts that he did not know Defendant BUSHATI, who he believes is an employee of the tenant, Defendant SMOKER BOX, not 53 WEST CENTRAL, had a dog within the building. Further, Silber avers that also did not know or have reason to know that a dangerous or vicious dog was being kept in the subject building. Additionally, Silber contends that 53 WEST CENTRAL, as the building owner, never received any complaints, reports or notice from anyone as to a dangerous or vicious dog at the premises.

Finally, Defendant 53 WEST CENTRAL argues, through the Silber Affirmation and their Counsel's Affirmation, that Judge Greenwald improperly granted Plaintiff's motion for default judgment as the evidentiary proof was insufficient. According to 53 WEST CENTRAL, the motion was insufficient because it was only supported by an affirmation of Plaintiff's counsel, who Defendant contends is a person without personal knowledge. Further, Defendant 53 WEST CENTRAL contends that the Amended Complaint filed in this action was only verified by Plaintiff's counsel, not by Plaintiff.

Plaintiff's Arguments in Opposition

In opposition, Plaintiff contends that Defendant 53 WEST CENTRAL is not entitled to vacatur pursuant to Civil Practice Law and Rules § 317 as the Defendant has confirmed in its Principal's affirmation that the address on file for 53 WEST CENTRAL with the New York Department of State is the subject premises address where service occurred. Further, Plaintiff argues that despite Chaim Silber and counsel for 53 WEST CENTRAL's assertion that the LLC is an out of possession landlord which conducts no business, has no office and does not receive mail at the subject address, neither has identified the actual business address of 53 WEST CENTRAL where they should have been served. Plaintiff notes that they remain unaware of any alternative business address where 53 WEST CENTRAL can or should be served. Additionally, Plaintiff avers that Defendant 53 WEST CENTRAL's arguments are contradicted by the deed for the subject premises, recorded on December 20, 2018, and the mortgage documents for the property (co-signed by Silber) each of which delineate the subject address as the principal place of business for 53 WEST CENTRAL. Plaintiff contends that based upon the aforementioned documents it can be inferred that 53 WEST CENTRAL's lack of notice of the instant action was created by purposeful conduct to avoid notice and service of process. Also, Plaintiff avers that 53 WEST CENTRAL has failed to provide any meritorious defense to the instant action.

The second argument in opposition advanced by Defendant 53 WEST CENTRAL is that Defendant is not entitled to vacatur pursuant to Civil Practice Law and Rules § 5015(a)(1) since 53 WEST CENTRAL's Principal admits that the address on file with the Secretary of State is the address of the subject property based upon documents completed by the Principal when he purchased the subject property. Plaintiff also avers that Silber's argument that he was unaware the incorrect address he provided at the time of purchase of the subject property would be used for service of process lacks merit, as the initial paperwork was filed in 2018 meaning the Secretary of State had the "incorrect address" for the past eight (8) years. As such, Plaintiff argues that Defendant 53 WEST CENTRAL's failure to update its address with the Secretary of State does not constitute a reasonable excuse for the default as required by Civil Practice Law and Rules § 5015(a)(1).

Plaintiff contends that Defendant 53 WEST CENTRAL's arguments of the existence of a meritorious defense in support of vacatur of their default need not be considered as they have failed to demonstrate a lack of actual notice. However, in the alternative Plaintiff argues that assuming lack of notice has been demonstrated, Defendant 53 WEST CENTRAL has failed to demonstrate a meritorious defense as their arguments rely upon conclusory assertions made by the Principal that have no evidentiary support. Plaintiff citing recent caselaw asserts that an injured plaintiff can pursue a strict liability or an ordinary negligence claim against a landlord regardless of whether the vicious propensities of the dog have been separately established. According to Plaintiff, Silber's assertion regarding his lack of knowledge of the existence of a dog at the subject premises or a lack of notice of the dog's dangerous propensities without any evidentiary support is insufficient since discovery has not been exchanged which would support the assertion.

Plaintiff also opposes Defendant 53 WEST CENTRAL's application to vacate the default judgment pursuant to Civil Practice Law and Rules §§ 3215(f) and 3215(g)(4)(i). At the outset, the Plaintiff contends that any defect regarding their failure to mail the notice pursuant to § 3215(g)(4)(i) alone is an inadvertent procedural error that does not rise to the level of requiring vacatur of the default judgment. Nonetheless, the Plaintiff argues that they did comply with § 3215(g)(4)(i) as evidenced by the affidavit of service demonstrating that they served 53 WEST CENTRAL with the instant default judgment motion, the accompanying exhibits, summons and original affidavit of service through the Secretary of State, at their last known address, the subject premises at least twenty (20) days before entry of the judgment. See NYSCEF Doc. No. 20. The Plaintiff asserts that service of the instant default judgment occurred on June 17, 2025, more than twenty (20) days before the entry of the default judgment on October 9, 2025, demonstrating Plaintiff complied with the requirements of Civil Practice Law and Rules § 3215(g)(4)(i). Further, Plaintiff argues that they made "extensive" efforts to notify Defendant 53 WEST CENTRAL of the instant action as they served numerous other documents on the Defendant at their last known address subsequent to June 17, 2025.

Finally, Plaintiff asserts that in seeking injunctive relief Defendant 53 WEST CENTRAL failed to comply with the requirements set forth in 22 NYCRR 202.7(f) and also the undersigned's Part Rules. The Plaintiff concedes that 53 WEST CENTRAL noticed them, via email, of the instant Order to Show Cause seeking vacatur of the default judgment as required by 22 NYCRR 202.7(f), but they contend that the notice did not comply with this Court's Part Rules. Specifically, Plaintiff notes that the Court's Part Rules require a party seeking temporary restraining orders must provide copies of all moving papers to the opposing party twenty-four (24) hours in advance of the date, time and application, which did not occur here. Plaintiff states that on August 3, 2026, at 10:01 a.m. they received an email from Defendant's counsel indicating an intention to file an emergency order to show cause seeking a temporary restraining order and the subject motion was filed later that day at 5:55 p.m., which is less than twenty-four (24) hours after the receipt of the notice. Additionally, Plaintiff indicates that the notice they received was non-compliant with the undersigned's Part Rules as it did not include copies of the moving papers.

The parties appeared on August 12, 2026, the return date of the instant Order to Show Cause, and at that time the Court heard oral argument, which was consistent with the arguments proffered in the aforementioned papers.

LAW/ANALYSIS

Defendant failed to show that its default should be vacated under either Civil Practice Law and Rules § 317 and Civil Practice Law and Rules § 5015(a)(1). "Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a meritorious defense." Bookman v 816 Belmont Realty, LLC, 180 AD3d 986, 987 [2d Dept 2020].

Here, Defendant 53 WEST CENTRAL, who was served by delivery of copies of the summons and complaint to the Secretary of State and also by service of an individual named, Aziz Alsaide, who was mistakenly identified as the owner of the subject premises, submitted an affidavit from its Principal, SILBER, who made a conclusory denial of receipt of the summons and complaint from the Secretary of State but has admitted that the address used was the address on file with the Secretary of State. See Goldfarb v Zhukov, 145 AD3d 757, 758 [2d Dept 2016].

The crux of Defendant 53 WEST CENTRAL's argument is that when they purchased the property, their Principal — SILBER -- mistakenly indicated that the corporation's place of business was the address of the subject building because he was "unaware" that the form he completed for the Secretary of State was intended for service of process. See NYSCEF Doc. No. 52, ¶ 7. As noted by Plaintiff, Defendant 53 WEST CENTRAL purchased the subject property in 2018, more than five (5) years before they were served in the instant action, and they have failed to provide any documentary evidence that they informed the Secretary of State of the error in the initial form filed or attempted to correct the address where service should have occurred.

In fact, neither SILBER nor his counsel has provided any explanation or documentary evidence as to the correct address where Defendant 53 WEST CENTRAL should have been served in this action. Moreover, SILBER's explanation as to when and how he became aware of the instant action, in which a Judgement was issued by the undersigned on April 3, 2026, is vague, and fails to account for the four (4) months between the issuance of the Judgment and the filing of the instant application.

Thus, the record before this Court demonstrates that Defendant 53 WEST CENTRAL was personally served the Summons and Complaint in this action in time to defend the action. See Funding NY, LLC v 1237 Dean Street Corp., 227 AD3d 1050, 1052 [2d Dept 2024]; See also New York City Economic Development Corp. v GCC, LLC, 209 AD3d 661, 662 [2d Dept 2022]; Residential Bd. of Mgrs, of 99 Jane St. Condominium v Rockrose Dev. Corp., 17 AD3d 194, 194 [1st Dept 2005]. Further, Defendant 53 WEST CENTRAL's failure to update their address on file with the Secretary of State to one where they received mail, had a mailbox, or was the address for which they sought to receive service of process is insufficient to establish that it did not receive the requisite notice. See Andrews v Wartburg Receiver, LLC, 203 AD3d 1000 [2d Dept 2022].

In fact, the record before the Court, specifically SILBER's statements as to the basis for the excuse for the default in his Affirmation, raise an inference that the Defendant was deliberately attempting avoid notice of actions commenced against it as an out-of-possession landlord. See Cruz v Keter Residence, LLC, 115 AD3d 700, 701 [2d Dept 2014]. Based upon the foregoing, Defendant 53 WEST CENTRAL's denial of service is insufficient to rebut the presumption of service created by the Secretary of State's affidavit of service.

"In contrast to a motion pursuant to CPLR 317, on a motion pursuant to CPLR 5015(a)(1), the movant is required to establish a reasonable excuse for his or her default." Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 164 AD3d 1214, 1216 [2d Dept 2018]. Civil Practice Law and Rules § 5015(a), titled "Relief from judgment or order," states:

(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within a year after such entry; or

2. newly discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or

3. fraud, misrepresentation, or other misconduct of an adverse party; or

4. lack of jurisdiction to render the judgment or order; or

5. reversal, modification or vacatur of a prior judgment or order upon which it is based.

In moving to vacate a default pursuant to § 5015(a)(1) (excusable default), the moving party is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense. See Needleman v Tornheim, 106 AD3d 707 [2d Dept. 2013]; Toll Brothers, Inc. v Dorsch, 91 AD3d 755 [2d Dept 2012]; Dimitriadis v Visiting Nurse Service of New York, 84 AD3d 1150 [2d Dept 2011].

Here, in support of its application pursuant to Civil Practice Law and Rules § 5015(a)(1) Defendant 53 WEST CENTRAL has made the same argument as previously addressed — that the LLC did not maintain an office, personnel or have mail-receiving capacity at the subject premises and mistakenly included the premises address on papers filed with the Secretary of State — which this Court has already determined is insufficient to rebut the presumption of service and does not provide a reasonable excuse for default. "[A] defendant's failure to keep the Secretary of State apprised of its current address over a significant period of time (here since 2018) [does] not constitute a reasonable excuse." Bookman v 816 Belmont Realty, LLC, 180 AD2d at 987-988 citing Cruz v Keter Residence, LLC, 115 AD3d at 701. Defendant 53 WEST CENTRAL's second argument, that the person served with the Summons and Complaint at the subject premises was not their authorized agent and instead was the owner of co-Defendant SMOKER BOX, also does not constitute a reasonable excuse for its default, as this Court has already determined that there was personal service through the Secretary of State.

In light of the foregoing determination as to reasonable excuse, it is unnecessary for the Court to determine whether Defendant 53 WEST CENTRAL demonstrated the existence of a potentially meritorious defense. See Bookman v 816 Belmont Realty, LLC, 180 AD3d at 988; See also Dove v 143 School St. Realty Corp., 172 AD3d 1315 [2d Dept 2019]. As such, Defendant 53 WEST CENTRAL's motion to vacate their default pursuant to Civil Practice Law and Rules § 5015(a)(1) is also denied in its entirety.

In as much as Defendant 53 WEST CENTRAL has failed to demonstrate the basis for this Court to vacate its default, the Court need not reach Defendant's argument that the prior jurist's Decision and Order granting Plaintiff's motion pursuant to Civil Practice Law and Rules § 3215 was not based upon sufficient evidence or proof of facts.

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Order to Show Cause filed by Defendant 53 WEST CENTRAL is denied in its entirety

ORDERED that temporary restraining order granted as to the Judgement entered by the undersigned on April 3, 2026, is vacated and Plaintiff may enforce the Judgment as issued.

Dated: October 8, 2026

New City, New York

FOOTNOTES

1.   The Decision and Order was signed on October 7, 2025, but was not uploaded on NYSCEF until October 9, 2025. See NYSCEF Doc. No. 23.

John P. Collins, Jr., J.