JEAN v. CSENCSITS

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Supreme Court, Appellate Division, Second Department, New York.

Michael JEAN, Respondent, v. William August CSENCSITS, etc., Appellant.

2018–09516

Decided: April 24, 2019

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ. Treybich Law, P.C., Poughkeepsie, N.Y. (Michael Treybich of counsel), for appellant. Anthony M. Bramante, Brooklyn, NY, for respondent.

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated June 5, 2018.  The order, insofar as appealed from, denied the defendant's motion to vacate a default judgment which, inter alia, directed specific performance of the contract.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This is an action seeking specific performance of a contract of sale for real property located in Orange County, New York. The plaintiff (hereinafter the buyer) commenced this action after the defendant (hereinafter the seller) failed to appear at a “time of the essence” closing.  After the buyer unsuccessfully attempted to personally serve the seller with the summons and complaint at the San Diego, California, address he provided for himself in the contract of sale, the Supreme Court granted the buyer's ex parte application to serve the seller by alternative form of service pursuant to CPLR 308(5).  After service was completed by those alternative means, the seller failed to answer or otherwise appear.  The court granted the buyer's motion for leave to enter a default judgment and scheduled an inquest on the issue of damages.  By order to show cause, the seller moved, inter alia, to vacate the default judgment.  The Supreme Court denied the seller's motion and scheduled an inquest on the issue of damages.  The seller appeals.

Contrary to the seller's contentions, he was properly served pursuant to CPLR 308(5), which authorizes the court to direct alternative forms of service of process.  CPLR 308(5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4), which provide for service by personal delivery, delivery and mail, and affixing and mailing, respectively, are impracticable (see Born To Build, LLC v. Saleh, 139 A.D.3d 654, 655, 31 N.Y.S.3d 545;  Matter of Kaila B., 64 A.D.3d 647, 648, 883 N.Y.S.2d 132;  Contimortgage Corp. v. Isler, 48 A.D.3d 732, 734, 853 N.Y.S.2d 162).  The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4) nor make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4) (see Matter of Kaila B., 64 A.D.3d at 648, 883 N.Y.S.2d 132;  Contimortgage Corp. v. Isler, 48 A.D.3d at 734, 853 N.Y.S.2d 162;  State St. Bank & Trust Co. v. Coakley, 16 A.D.3d 403, 403, 790 N.Y.S.2d 412;  Astrologo v. Serra, 240 A.D.2d 606, 606, 659 N.Y.S.2d 481).  “Once the impracticability standard is satisfied, due process requires that the method of service be ‘reasonably calculated, under all the circumstances, to apprise’ the defendant of the action” (Contimortgage Corp. v. Isler, 48 A.D.3d at 734, 853 N.Y.S.2d 162, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865).  Here, the buyer demonstrated that it was impracticable to serve the seller pursuant to CPLR 302(1), (2), and (4), and the Supreme Court's order directing service through alternative forms was reasonably calculated to apprise the seller of the action under the circumstances of this case (see generally Contimortgage Corp. v. Isler, 48 A.D.3d at 734, 853 N.Y.S.2d 162).

Pursuant to CPLR 317, a defendant who has been served with a summons and complaint other than by personal delivery may be allowed to defend the action upon a finding of the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see CPLR 317;  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Acqua Capital, LLC v. Camarella Contr. Co., Inc., 164 A.D.3d 1197, 1198, 82 N.Y.S.3d 122;  Gershman v. Midtown Moving & Stor., Inc., 123 A.D.3d 974, 975, 999 N.Y.S.2d 485).  Here, the seller was not entitled to relief pursuant to CPLR 317 since he failed to demonstrate that he did not receive actual notice of the summons and complaint in time to defend the action (see CPLR 317;  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 142, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Jing Shan Chen v. R & K 51 Realty, Inc., 148 A.D.3d 689, 691, 48 N.Y.S.3d 474).

A defendant seeking to vacate a default in answering or appearing upon the grounds of excusable default pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  HSBC Bank USA, N.A. v. Smart, 155 A.D.3d 843, 843, 63 N.Y.S.3d 700).  Here, we agree with the Supreme Court's determination that the seller's excuse for not answering or appearing was “tenuous at best.”  Moreover, even if the seller had demonstrated a reasonable excuse for his default, he failed to offer a potentially meritorious defense to the action (see generally Bank of N.Y. Mellon Trust Co., N.A. v. Sukhu, 163 A.D.3d 748, 751, 83 N.Y.S.3d 70).  Where, as here, a provision in a contract for the sale of real property provides that in the event the seller cannot convey a clear title, the seller may refund the buyer's deposit and cancel the contract, that limitation contemplates the existence of a situation beyond the control of the parties and implicitly requires the seller to act in good faith (see Karl v. Kessler, 47 A.D.3d 681, 682, 850 N.Y.S.2d 164;  Sevilla v. Valiotis, 29 A.D.3d 775, 776, 815 N.Y.S.2d 229;  Naso v. Haque, 289 A.D.2d 309, 310, 734 N.Y.S.2d 214).  Here, as the court ruled, the record does not show that the seller made any effort to clear title, which ultimately was successfully and relatively easily cleared by the buyer.

Accordingly, we agree with the Supreme Court's determination denying the seller's motion to vacate the default judgment.

MASTRO, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.

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