Lakpa Daki Sherpa, appellant, v. SRF (2026)

Argued—March 31, 2026

DECISION & ORDER

O/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph Esposito, J.), entered January 9, 2025.  The order granted that branch of the motion of the defendant SRF Partnership, L.P., which was pursuant to CPLR 317 to vacate so much of an order of the same court dated February 5, 2024, as granted that branch of the plaintiff's prior motion which was for leave to enter a default judgment against that defendant upon its failure to appear or answer the complaint, and to compel the plaintiff to accept that defendant's late answer.

ORDERED that the order entered January 9, 2025, is affirmed, with costs.

In January 2023, the plaintiff commenced this action against, among others, the defendant SRF Partnership, L.P. (hereinafter the defendant), to recover damages for personal injuries she allegedly sustained due to a falling object while working on premises owned by the defendant.  The plaintiff served the defendant by delivering copies of the summons and complaint to the Secretary of State.  The defendant failed to appear or answer the complaint.

Subsequently, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant.  In an order dated February 5, 2024, the Supreme Court, among other things, granted that branch of the plaintiff's motion.  Thereafter, the defendant moved pursuant to CPLR 317 or 5015(a)(1) to vacate the order dated February 5, 2024, and to compel the plaintiff to accept its late answer.  In an order entered January 9, 2025, the Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 317.  The plaintiff appeals.

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 Joseph v. 5 Jag, LLC, 239 AD3d 626, 626–627;  Selmon v. B & H Dev. 1 Corp., 208 AD3d 528, 528).  Service upon a corporation through delivery of the summons and complaint to the Secretary of State is not personal delivery to the corporation (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142;  Galatro v. Lake Pointe Owners, Inc., 230 AD3d 1111, 1113).  There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay (see Joseph v. 5 Jag, LLC, 239 AD3d at 627;  Bachvarov v. Khaimov, 224 AD3d 724, 726).

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time that the summons and complaint were served was incorrect and, consequently, that it did not receive actual notice of the action in time to defend itself (see Galatro v. Lake Pointe Owners, Inc., 230 AD3d at 1113;  Acqua Capital, LLC v. Camarella Contr.  Co., Inc., 164 AD3d 1197, 1198).  Further, there is no basis in the record to conclude that the defendant's failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process (see Selmon v. B & H Dev. 1 Corp., 208 AD3d at 529;  Golden Eagle Capital Corp. v. Paramount Mgt. Corp., 185 AD3d 664, 666).  Moreover, the defendant demonstrated the existence of a potentially meritorious defense insofar as the subject property was leased to another entity at the time of the incident (see Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5, 233 AD3d 814, 815;  Grosso v MTO Assoc.  Ltd. Partnership, 12 AD3d 402, 403).

The defendant's remaining contention need not be reached in light of our determination.

Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant's motion which was pursuant to CPLR 317 to vacate so much of the order dated February 5, 2024, as granted that branch of the plaintiff's prior motion which was for leave to enter a default judgment against the defendant and to compel the plaintiff to accept the defendant's late answer.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court