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MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT)

The Second Department determined that defendant's motion to vacate a default judgment pursuant to CPLR 317 was properly granted:

CPLR 317 provides that a defendant who is not served by personal delivery in an action may vacate its default as long as it demonstrates that it did not personally receive notice of the lawsuit in time to defend against the action and shows that it possesses a potentially meritorious defense … . The determination of a motion pursuant to CPLR 317 is addressed to the sound discretion of the trial court, “the exercise of which will generally not be disturbed if there is support in the record therefor”… .

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of 510's motion which was pursuant to CPLR 317 to vacate the judgment of foreclosure and sale on the condition that it pay all amounts owed within 30 days of the date of the order. Service of the summons and complaint in the foreclosure action was made upon 510 by delivering the pleadings to the Secretary of State (see Limited Liability Company Law § 303), which did not constitute personal delivery … , and 510's submissions in support of the motion established that it did not receive actual notice of the foreclosure action in time to defend… . Moreover, under the circumstances of this case, 510 succeeded in setting forth a potentially meritorious defense to the foreclosure action. Finally, the evidence does not suggest that 510's failure to update its service address with the Secretary of State while its principal offices were undergoing renovations constituted a deliberate attempt to evade notice; hence, that failure did not preclude the granting of relief to it under CPLR 317 … . Acqua Capital, LLC v 510 W. Boston Post Rd, LLC, 2018 NY Slip Op 05991, Second Dept 9-12-18

CIVIL PROCEDURE (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (CIVIL PROCEDURE, MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))/DEFAULT JUDGMENT (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))/CPLR 317 (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))

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