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DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED WITH THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED; THE ADDRESS ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate its default because it was never served with the summons and complaint should have been granted. The defendant demonstrated the address on file with the Secretary of State was incorrect and the failure to update the address was not a deliberate attempt to avoid service:

” CPLR 317 provides, generally, that a defendant is entitled to vacatur of a default judgment if it is established that he [or she] did not receive personal notice of the summons in time to defend and that he [or she] has a meritorious defense'”… . “It is also well established that service 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” … . While it is not necessary for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay … , a defendant is not entitled to relief under that statute where its failure to receive notice of the summons “was a result of a deliberate attempt to avoid such notice” … .

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 the summons and complaint were served was incorrect, and that it did not receive actual notice of the summons and complaint in time to defend itself against this action … . Contrary to the plaintiff’s contention, an order dated August 21, 2013, issued in connection with the 2009 action, which was mailed to the defendant at the subject property, did not place the defendant on notice that the address on file with the Secretary of State was incorrect  … . In addition, the evidence does not suggest that the defendant’s failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Golden Eagle Capital Corp. v Paramount Mgt. Corp., 2020 NY Slip Op 03770, Second Dept 7-8-20

 

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