Opinion
11-02-2016
Volodymyr VENGRENYUK, plaintiff, v. EXXONMOBIL OIL CORPORATION, et al., defendants third-party plaintiffs-respondents; Soilsolution Industries, Inc., defendant second third-party plaintiff-respondent; Gilmar Design Corporation, third-party defendant/second third-party defendant-appellant.
Gartner & Bloom, P.C., New York, N.Y. (Alissa A. Mendys of counsel), for third-party defendant/second third-party defendant-appellant. Carroll McNulty & Kull, LLC, New York, N.Y. (Frank J. Wenick and Michael R. Schneider of counsel), for defendants third-party plaintiffs-respondents. Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Mark J. Volpi of counsel), for defendant second third-party plaintiff-respondent.
Gartner & Bloom, P.C., New York, N.Y. (Alissa A. Mendys of counsel), for third-party defendant/second third-party defendant-appellant.
Carroll McNulty & Kull, LLC, New York, N.Y. (Frank J. Wenick and Michael R. Schneider of counsel), for defendants third-party plaintiffs-respondents.
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Mark J. Volpi of counsel), for defendant second third-party plaintiff-respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the third-party defendant/second third-party defendant, Gilmar Design Corporation, appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated April 17, 2015, which denied its motion pursuant to CPLR 5015(a)(1) and CPLR 317 to vacate an order of the same court dated September 14, 2012, granting the unopposed motion of the defendants third-party plaintiffs, Exxonmobil Oil Corporation and Roux Associates, Inc., for leave to enter a default judgment against it, upon its failure to appear or answer the third-party complaint, and an order of the same court dated June 14, 2013, granting the unopposed motion of the defendant second third-party plaintiff, Soilsolution Industries, Inc., for leave to enter a default judgment against it, upon its failure to appear or answer the second third-party complaint.
ORDERED that the order dated April 17, 2015, is affirmed, with one bill of costs payable to the defendants third-party plaintiffs-respondents and the defendant second third-party plaintiff-respondent appearing separately and filing separate briefs.
The Supreme Court properly denied the motion of the third-party defendant/second third-party defendant, Gilmar Design Corporation (hereinafter Gilmar) to vacate the orders granting the motion of the defendants third-party plaintiffs, Exxonmobil Oil Corporation and Roux Associates, Inc. (hereinafter together Exxon), and the separate motion of the defendant second third-party plaintiff, Soilsolution Industries, Inc. (hereinafter Soilsolution), for leave to enter judgments against it upon its failure to appear or serve answers to the third-party complaint and second third-party complaint, respectively. The record demonstrates that the address on file for Gilmar with the Secretary of State had not been updated for a period of at least three years (see Hidalgo v. Cruiser Taxi Corp., 101 A.D.3d 950, 957 N.Y.S.2d 222 ; Fatima v. Twenty Seven–Twenty Four Realty Corp., 53 A.D.3d 564, 861 N.Y.S.2d 768 ; J & S Constr. of NY, Inc. v. 321 Bowery LLC, 39 A.D.3d 391, 835 N.Y.S.2d 65 ; Franklin v. 172 Aububon Corp., 32 A.D.3d 454, 819 N.Y.S.2d 785 ). Under these circumstances, Gilmar failed to establish a reasonable excuse for its failure to keep the Secretary of State apprised of its current address for the forwarding of process (see CPLR 5015[a][1] ; Schacker Real Estate Corp. v. 553 Burnside Ave., LLC, 133 A.D.3d 586, 587, 20 N.Y.S.3d 91 ; Sussman v. Jo–Sta Realty Corp., 99 A.D.3d 787, 951 N.Y.S.2d 683 ; Bontempts v. Aude Constr. Corp., 98 A.D.3d 1071, 1072, 951 N.Y.S.2d 561 ). Additionally, Gilmar lacked potentially meritorious defenses to the third-party actions, as required for vacatur under both CPLR 5015(a)(1) and 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 ; NYCTL 2005–A Trust v. 2137–2153 Nostrand Ave. Assoc., L.P., 69 A.D.3d 697, 698, 895 N.Y.S.2d 104 ; Santiago v. Sansue Realty Corp., 243 A.D.2d 622, 623, 663 N.Y.S.2d 235 ; Paul Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622–623, 511 N.Y.S.2d 58 ). Since Gilmar failed to demonstrate that it was entitled to vacate the default orders pursuant to CPLR 5015(a)(1) or 317, any failure on the part of Exxon or Soilsolution to comply with CPLR 3215(g)(4)(i) does not constitute a basis for vacatur of the orders (see Hamilton Pub. Relations v. Scientivity, LLC, 129 A.D.3d 1025, 1026, 12 N.Y.S.3d 234 ; Castle v. Avanti, Ltd., 86 A.D.3d 531, 532, 926 N.Y.S.2d 169 ; Peck v. Dybo Realty Corp., 77 A.D.3d 640, 641, 908 N.Y.S.2d 364 ).
Gilmar's remaining contention is without merit.