Opinion
12-14-2016
Sofiya GOLDFARB, respondent, v. Oleg N. ZHUKOV, defendant, Second Home Social Adult Day Care Center of 86th Street, LLC, appellant.
Zeltser Law Group, PLLC, Brooklyn, N.Y. (Naomi Zeltser of counsel), for appellant. William Pager, Brooklyn, N.Y., for respondent.
Zeltser Law Group, PLLC, Brooklyn, N.Y. (Naomi Zeltser of counsel), for appellant.
William Pager, Brooklyn, N.Y., for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the defendant Second Home Social Adult Day Care Center of 86th Street, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated July 1, 2015, as denied that branch of its motion which was pursuant to CPLR 5015(a) to vacate an order of the same court (Baynes, J.), dated February 4, 2015, granting the plaintiff's unopposed motion for leave to enter a default judgment against it on the issue of liability, upon its failure to answer the complaint.
ORDERED that the order dated July 1, 2015, is affirmed insofar as appealed from, with costs.
"A defendant seeking to vacate a default in appearing or answering pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" (Sussman v. Jo–Sta Realty
Corp., 99 A.D.3d 787, 788, 951 N.Y.S.2d 683 ; see Clover M. Barrett, P.C. v. Gordon, 90 A.D.3d 973, 936 N.Y.S.2d 217 ). Here, the defendant Second Home Social Adult Day Care Center of 86th Street, LLC (hereinafter the defendant), did not contend that the address that it had on file with the Secretary of State was incorrect and, therefore, its mere denial of receipt of the summons and complaint, without more, was insufficient to demonstrate a reasonable excuse for its default (see Limited Liability Company Law § 303[a] ; Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 725, 32 N.Y.S.3d 198 ; Hamilton Pub. Relations v. Scientivity, LLC, 129 A.D.3d 1025, 12 N.Y.S.3d 234 ; see also Ultimate One Distrib. Corp. v. 2900 Stillwell Ave., LLC, 140 A.D.3d 1054, 36 N.Y.S.3d 142 ).
Although the defendant did not cite to CPLR 317 in support of its motion, under the circumstances of this case, this Court may also treat it as a motion made pursuant to CPLR 317 as a basis for vacating the default (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., Inc., 67 N.Y.2d 138, 142–143, 501 N.Y.S.2d 8, 492 N.E.2d 116 ). 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 potentially meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 141–142, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; Schacker Real Estate Corp. v. 553 Burnside Ave., LLC, 133 A.D.3d 586, 587, 20 N.Y.S.3d 91 ; Gershman v. Midtown Moving & Stor., Inc., 123 A.D.3d 974, 975, 999 N.Y.S.2d 485 ). 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 (see Ultimate One Distrib. Corp. v. 2900 Stillwell Ave., LLC, 140 A.D.3d at 1054–1055, 36 N.Y.S.3d 142 ; Xiao Lou Li v. China Cheung Gee Realty, 139 A.D.3d at 725, 32 N.Y.S.3d 198 ; Hamilton Pub. Relations v. Scientivity, LLC, 129 A.D.3d at 1025, 12 N.Y.S.3d 234 ). In light of our determination, it is not necessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 5015(a)(1) or 317.
Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to vacate the order dated February 4, 2015.