497 LLC LLC v. Wail Alsaidi and Take A Puff, Inc., Respondents. (2026)

ORDERED that the order is reversed, without costs, defendants' motion to vacate the default judgment is denied, and the default judgment is reinstated.

In this action, plaintiff seeks to recover the principal sum of $15,000, representing arrears and late fees that accrued under a commercial lease agreement following defendants' vacatur from the leased premises. An affidavit of service alleged that the summons and complaint were served upon defendant Wail Alsaidi via conspicuous place service by affixing it to the door of his residence on October 16, 2023 at 6:45 p.m., following attempts on October 12, 2023 at 7:45 a.m. and October 14, 2023 at 9:46 a.m., and mailing a copy on October 18, 2023 via first class mail in an envelope marked personal and confidential. A second affidavit of service alleged that the summons and complaint were served upon defendant Take A Puff, Inc., via delivery to the Office of the Secretary of State on September 11, 2023 at 9:00 a.m. Defendants did not appear or answer the complaint and a default judgment was entered against them on March 26, 2024.

Defendants moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and 317. Walead Alsaidi, the manager of Take a Puff, Inc. and the brother of defendant Wail Alsaidi, submitted a supporting affidavit in which he stated that defendants had not received notice of this action until a hold was placed on what Walead characterized as "our bank account." Walead attested that he lives with his family members, including defendant Wail, that someone in their family would have been home during the times that personal service was attempted and that no summons and complaint were ever received at their residence. Walead alleged that defendants' potentially meritorious defenses include that plaintiff waived their claims to any amounts due under the lease following defendants' vacatur, constructive eviction, and failure to mitigate damages. Defendants' counsel argued that Take a Puff, Inc. did not receive notice via the Secretary of State because the address on file with the state was the former store address that Take a Puff, Inc. no longer occupied. By order dated June 18, 2024, the City Court (Ada D. Medina, J.) ordered a traverse hearing.

At the traverse hearing, Walead Alsaidi testified as defendants' only witness. He stated that Wail is his brother, that they reside together with other family members, that everyone in the residence has access to the mailbox, that he did not observe the delivery of any documents related to this action, and that he first became aware of this action after a hold was placed on what he now said was Wail's bank account. By order dated November 1, 2024, the City Court (Karen N. Best, J.) found no basis to vacate the default judgment pursuant to CPLR 5015 (a) (1), as defendants had not set forth a reasonable excuse for their default, but granted defendants' motion on the ground that vacatur was appropriate 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, within a statutorily specified time period, upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Booso v Tausik Bros., LLC, 148 AD3d 1108 [2017]). "There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay" (Kircher v William Penn Life Ins. Co. of NY, 165 AD3d 1241, 1243 [2018]; see Booso v Tausik Bros, LLC, 148 AD3d 1108). "[S]ervice on a corporation through delivery of process to the Secretary of State is not 'personal delivery' to the corporation or to an agent designated under CPLR 318" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]; see Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1081 [2011]).

A motion seeking relief under CPLR 317 must demonstrate that the defendant did not personally receive notice of the summons in time to defend the action (see Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 164 AD3d 1214 [2018]; Alto v Firebaugh Realty Corp., N.V., 33 AD3d 738 [2006]). Wail is a named defendant and the president and owner of Take a Puff, Inc. However, no affidavit by Wail was included in the motion and there was no testimony from Wail during the traverse hearing to support the allegation by Walead that Wail did not personally receive notice of the action against him or against the corporate defendant in time to defend it. Although Walead resides with Wail, Walead's allegations that he personally did not receive any notices in the mail or observe any notices affixed to the front door of their residence do not sufficiently establish that Wail did not receive any such notices. Consequently, defendants did not demonstrate that either defendant Wail or defendant Take a Puff, Inc. did not receive notice of this action in time to defend. We note that defendants' failure to submit an affidavit based on personal knowledge or testimony from Wail precludes relief under CPLR 5015 (a) (1) (see Matter of Ramos v Ramos, 174 AD3d 718 [2019]).

Accordingly, the order is reversed, defendants' motion to vacate the default judgment is denied, and the default judgment is reinstated.

WALSH, J.P., CONWAY and VAZQUEZ-DOLES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: August 20, 2026