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MOTHER’S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT).

The Second Department determined that mother's mental illness supported the neglect finding and an order requiring mother to cooperate with medication management by her mental health service providers:

Mental illness means “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act” (Social Services Law § 384-b[6][a]). “While parental neglect may be based on mental illness, proof of a parent's mental illness alone will not support a finding of neglect”… . Rather, the petitioner must adduce evidence sufficient to “establish a causal connection between the parent's condition, and actual or potential harm to the [child]” … .

… [T]the mother's contention that the Family Court acted in excess of its jurisdiction or violated her constitutional right to direct her own medical treatment when it directed that she comply with medication management recommended by her mental health service providers is without merit, since the court did not order the forcible administration of medication … . Matter of Nialani T. (Elizabeth B.), 2018 NY Slip Op 06019, Second Dept 9-12-18

FAMILY LAW (MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))

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STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT).

The Second Department determined plaintiff-student’s action against the school board and municipality stemming from the student’s being struck by a car crossing a street after school was properly dismissed. No crossing guard was provided for the street where the student crossed, but a crossing guard was routinely provided  for a street a block away and that guard was out sick on the day of the accident. No special relationship with the municipality was demonstrated. Because the student had been dismissed from the school, the negligent supervision cause of action was not viable:

A municipal defendant is immune from negligence claims arising from the performance of its governmental functions unless the injured person can establish a special relationship with the municipal defendant … . The elements of a special relationship based on a voluntary assumption of a duty are “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) the injured party’s justifiable reliance on the municipality’s affirmative undertaking” … . …

The municipal defendants’ duty was limited to providing a crossing guard at the intersection of 101st Street and Seaview Avenue, and did not extend to the intersection of 100th Street and Seaview Avenue, where no crossing guard was assigned … . Further, the municipal defendants established, prima facie, that the failure of having a crossing guard at the intersection of 101st Street and Seaview Avenue was not a proximate cause of the injuries allegedly sustained by the infant plaintiff in this case … . …

The municipal defendants also established their prima facie entitlement to judgment as a matter of law dismissing the negligent supervision cause of action. Their submissions demonstrated that the accident occurred after the infant plaintiff was dismissed from school … , and that they did not release the infant plaintiff into a foreseeably hazardous setting that they had a hand in creating … . Ade v City of New York, 2018 NY Slip Op 05993, Second Dept 8-12-18

EDUCATION-SCHOOL LAW (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, MUNICIPAL LAW, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))/PEDESTRIANS (NEGLIGENCE, STUDENT WALKING HOME FROM SCHOOL STRUCK BY A CAR, SUIT AGAINST SCHOOL BOARD AND MUNICIPALITY PROPERLY DISMISSED, NO SPECIAL RELATIONSHIP WITH MUNICIPALITY, NO DUTY TO SUPERVISE AFTER DISMISSAL FROM SCHOOL (SECOND DEPT))

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LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint seeking a declaration that plaintiff is the owner, by adverse possession, of land adjacent to municipal railway tracks states a cause of action. The court explained that land held by a municipality in a proprietary capacity, as opposed to a governmental capacity, is not immune from adverse possession:

Although a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute… , when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession … . Here, the [municipality] did not conclusively establish that the property is not subject to adverse possession on the basis of governmental immunity. Mazzei v Metropolitan Transp. Auth., 2018 NY Slip Op 06007, Second Dept 9-12-18

MUNICIPAL LAW (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/REAL PROPERTY LAW (ADVERSE POSSESSION, MUNICIPAL LAW, (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, ADVERSE POSSESSION, LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/ADVERSE POSSESSION (MUNICIPAL LAW, ADVERSE POSSESSION, LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))/PROPRIETARY CAPACITY (MUNICIPAL LAW, ADVERSE POSSESSION, (LAND HELD BY A MUNICIPALITY IN A PROPRIETARY CAPACITY IS NOT IMMUNE FROM ADVERSE POSSESSION (SECOND DEPT))

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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))

MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant's cross-motion to compel plaintiff to accept a late answer, in response to plaintiff's motion for a default judgment, was properly granted:

The plaintiff allegedly slipped and fell on snow and ice on an exterior walkway located on property owned and operated by the defendants. She subsequently commenced this action and served the defendants with process via the Secretary of State on October 11, 2016, pursuant to Limited Liability Company Law § 303. On November 25, 2016, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. On December 22, 2016, 42 days after the defendants' time to answer had expired, the defendants cross-moved pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept their late answer. Annexed to the defendants' cross motion was their proposed answer. The Supreme Court denied the plaintiff's motion and granted the defendants' cross motion. The plaintiff appeals.

In light of the lack of prejudice to the plaintiff resulting from the defendants' short delay in answering the complaint, the lack of willfulness on the part of the defendants, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendants and in granting the defendants' cross motion to compel the plaintiff to accept their late answer … . Marcelli v Lorraine Arms Apts., LLC, 2018 NY Slip Op 06006, Second Dept 9-12-18

CIVIL PROCEDURE (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))/CPLR 3215  (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))/CPLR 2004 (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))/CPLR 3012(d)  (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))

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FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT).

The Second Department determined the failure to submit an order for signature within 60 days constituted abandonment of the action:

The Supreme Court declined to sign the plaintiff's proposed order granting it summary judgment and, in the order appealed from, the court vacated the decision entered September 16, 2009, in effect, granted that branch of the motion … which was pursuant to CPLR 3215 to dismiss the complaint insofar … as abandoned, and, thereupon, directed dismissal of the complaint in its entirety pursuant to CPLR 1003.

“Proposed orders . . . , with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]). “Failure to submit the order . . . timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). These provisions are not applicable where the decision does not explicitly direct that the proposed judgment or order be settled or submitted for signature (see Funk v Barry, 89 NY2d 364). However, the direction to “settle order” “ordinarily entails more complicated relief,” and therefore “contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court” (Funk v Barry, 89 NY2d at 367). Here, the decision entered September 16, 2009, directed the plaintiff to “settle order.” Lasalle Bank N.A. v Benjamin, 2018 NY Slip Op 06005, Second Dept 9-12-18

CIVIL PROCEDURE (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))/CPLR 3215 (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))/CPLR 1003  (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))/FORECLOSURE  (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))

INJURY FROM STEPPING INTO AN OPENING THAT IS NOT BIG ENOUGH FOR A PERSON TO FALL THROUGH IS NOT COVERED BY LABOR 240 (1) OR 241 (6) (SECOND DEPT).

The Second Department determined the defendants were entitled to summary judgment on the Labor Law 240 (1) and 241 (6) causes of action because injury caused by stepping in an opening that is not big enough for a person to fall through is not covered:

The defendants established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action. The defendants submitted evidence that, although the plaintiff's foot slipped through openings in the rebar grid, the openings were too small for a person's body to fall through. The plaintiff testified at his deposition that his foot could fit through the openings, but not his entire body. The defendants, therefore, established that the openings of the grid did ” not present an elevation-related hazard to which the protective devices enumerated [in Labor Law § 240(1)] are designed to apply'” … . In opposition, the plaintiff failed to raise a triable issue of fact … .

The defendants also established, prima facie, their entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action, which was premised upon alleged violations of 12 NYCRR 23-1.7(b)(1) and (d), (e), and (f). The provision pertaining to “hazardous openings” (12 NYCRR 23-1.7[b][1]) does not apply to openings that are too small for a worker to completely fall through … . Johnson v Lend Lease Constr. LMB, Inc., 2018 NY Slip Op 06004, Second Dept 9-12-18

LABOR LAW-CONSTRUCTION LAW (INJURY FROM STEPPING INTO AN OPENING THAT IS NOT BIG ENOUGH FOR A PERSON TO FALL THROUGH IS NOT COVERED BY LABOR 240 (1) OR 241 (6) (SECOND DEPT))

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YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that a Yellowstone injunction should not have issued to plaintiff nightclub. The defendant landlord started proceedings to terminate the lease based upon an alleged violation of the noise-level provision in the lease:

” A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture' of the lease”… . ” To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'” … . A plaintiff demonstrates that it has the desire and ability to cure its alleged default by indicating in its motion papers that it is willing to repair any defective condition found by the court and by providing proof of the substantial effort it has already made in addressing the default listed on the notice to cure … .

In this case, the plaintiff failed to satisfy its burden of adducing evidence that it is willing and able to cure its default. 146 Broadway Assoc., LLC v Bridgeview at Broadway, LLC, 2018 NY Slip Op 05990, Second Dept 9-12-18

LANDLORD-TENANT (YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))/YELLOWSTONE INJUNCTION (LANDLORD-TENANT, YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))

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CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT).

The Second Department determined defendant failed to meet the proof requirements for adverse possession and ouster against a cotenant:

In order to establish his counterclaim for adverse possession, the defendant was required to prove, by clear and convincing evidence, that his possession of the property was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required statutory period… . The defendant could not establish that his possession of Lot 176 was under a claim of right, as he did not have a reasonable basis for the belief that the property belonged to him alone (see RPAPL 501[3]). Even assuming that the defendant had exclusive possession of Lot 176 and that he paid maintenance expenses on that property, these actions are insufficient to establish a claim of right for purposes of adverse possession as against a cotenant … . RPAPL 541 creates a statutory presumption that a tenant in common in possession holds the property for the benefit of the cotenant … . The presumption ceases only after the expiration of 10 years of exclusive occupancy of such tenant or upon ouster (see RPAPL 541…).

Actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants. Ouster may be implied in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them … . Here, the defendant did not commit acts constituting either an actual or implied ouster. Absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession … . Even assuming that the defendant had exclusive possession of the property after the plaintiff went on disability in 1994, the required 20-year statutory period had not elapsed when the defendant asserted his counterclaim for adverse possession in his answer … . Fini v Marini, 2018 NY Slip Op 06003, Second Dept 9-12-18

REAL PROPERTY LAW (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/COTENANTS (REAL PROPERTY LAW, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/ADVERSE POSSESSION (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))/OUSTER (CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT))

MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 AND 5015 PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment pursuant to CPLR 317 and 5015(a) was properly denied because the defendant did not demonstrate it was not personally served with the summons and complaint. The court explained the criteria under each statute:

CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . However, the “mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … . Here, the defendant failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of the defendant's “representative,” who appears to be its attorney, stated that the complaint was not delivered “personally” to the defendant, but rather, “to an inaccurate address through the Secretary of State,” which address had not been valid “for several years.” This representative's affidavit does not appear to be based on personal knowledge. Furthermore, there is no allegation contained in this affidavit that the defendant, in fact, never received the summons and complaint, nor is there any detail as to where the defendant moved to and when, nor whether the defendant made any efforts to update its address on file with the Secretary of State. Under these circumstances, the defendant did not demonstrate lack of actual notice of the action … .

In contrast to a motion pursuant to CPLR 317, on a motion pursuant to CPLR 5015(a)(1), the movant is required to establish a reasonable excuse for his or her default. In general, a defendant's failure to keep a current address on file with the Secretary of State does not constitute a reasonable excuse … . However, there is no per se rule that a corporation served through the Secretary of State, and which failed to update its address on file there, cannot demonstrate an “excusable default.” Rather, a court should consider, among other factors, the length of time for which the address had not been kept current … . Here, no evidence was presented as to how long the address was not updated. Accordingly, the defendant failed to establish a reasonable excuse for its default. Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 2018 NY Slip Op 06001, Second Dept 9-12-18

CIVIL PROCEDURE (DEFAULT JUDGMENT, MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 AND 5015 PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 317 (DEFAULT JUDGMENT, MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 AND 5015 PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 5015(a) (DEFAULT JUDGMENT, MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 AND 5015 PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))/DEFAULT JUDGMENT, MOTION TO VACATE (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 AND 5015 PROPERLY DENIED, CRITERIA EXPLAINED (SECOND DEPT))

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