Summary
holding that "plaintiff LLC's failure to obtain a certificate of authority to do business in New York before initiating the action is not a fatal jurisdictional defect and such certificate has since been obtained"
Summary of this case from Krell Investor LLC v. KI, Inc.Opinion
No. 2827.
May 20, 2010.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 8, 2009, which denied defendants' motion to vacate a default judgment, unanimously affirmed, with costs.
Peter M. Agulnick, P.C., New York (Peter M. Agulnick of counsel), for appellants.
The Law Offices of Neal Brickman, P.C., New York (Neal Brickman of counsel), for respondents.
Before: Saxe, J.P., Catterson, Renwick, Richter and Abdus-Salaam, JJ.
Defendants adduce no competent evidence to support their assertion that the individual defendant had no interest in the corporate defendants for a four-month period of time that happened to coincide with commencement of the action, relieving her of responsibility for answering the complaint, and otherwise fail to show a reasonable excuse for their default (CPLR 5015 [a] [1]). CPLR 3215 (g) (3) does not avail defendants, as the action is not one based on nonpayment of a contractual obligation. Nor does Limited Liability Company Law § 808 (a) avail defendants, as plaintiff LLC's failure to obtain a certificate of authority to do business in New York before initiating the action is not a fatal jurisdictional defect and such certificate has since been obtained ( cf. Tri-Terminal Corp. v CITC Indus., 78 AD2d 609). We have considered defendants' other arguments and find them unavailing.