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Defendant Who Was Not Served Because Current Address Not on File with Secretary of State Entitled to Vacate Default Judgment Pursuant to CPLR 317

The Second Department determined defendant’s motion to vacate a default judgment should have been granted pursuant to CPLR 317, even though that ground was not raised below. Apparently defendant did not keep a current address on file with the Secretary of State. Therefore, although the Secretary of State was served, defendant did not receive notice of the suit in time to defend:

… [A]lthough the defendant did not cite CPLR 317 in support of its motion, this Court may, under the circumstances presented here, consider CPLR 317 as a basis for vacating the default (see CPLR 2001…). CPLR 317 permits a defendant who has been “served with a summons other than by personal delivery” 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” (CPLR 317…). Here, there was no evidence that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action … . Proof that additional copies of the summons and complaint were delivered to an employee of the tenant occupying premises owned by the defendant was insufficient to establish that the defendant received notice of the summons and complaint … . Furthermore, there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had knowledge of the defendant’s actual business address … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 2015 NY Slip Op 07963, 2nd Dept 11-4-15

 

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