Summary
holding that an affidavit of service on corporations through service on the Secretary of State creates a rebuttable presumption that service has been effectuated
Summary of this case from Gov't Emps. Ins. Co. v. Active Care Med. Supply Corp.Opinion
2005-03200.
May 2, 2006.
In an action to recover unpaid premiums for a worker's compensation insurance policy, the defendant appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated March 4, 2005, which denied its motion to vacate a judgment entered September 19, 2003, upon its failure to appear or answer, which was in favor of the plaintiff and against it in the principal sum of $128,293.08.
Ferrugia Calisto, LLP, Hauppauge, N.Y. (Edward Calisto of counsel), for appellant.
Douglas J. Hayden, New York, N.Y. (Edwin Rivera of counsel), for respondent.
Before: Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015 (a) (1) to vacate its default in appearing or answering the complaint since it failed to demonstrate a reasonable excuse for its default ( see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor v. Saal, 4 AD3d 467). The plaintiff established that it effected service upon the defendant by delivering a copy of the summons and verified complaint to the Secretary of State ( see CPLR 311 [a] [1]; Business Corporation Law § 306; Nichols v. Richmond Ambulance Serv., 259 AD2d 741). The defendant did not contend that the address on file with the Secretary of State was incorrect, and the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service created by the affidavit of service ( see Carrenard v. Mass, 11 AD3d 501; Truscello v. Olympia Constr., 294 AD2d 350, 351; Wieck v. Halpern, 255 AD2d 438).
Furthermore, that branch of the defendant's motion which was to vacate the default judgment pursuant to CPLR 317 was also properly denied since the defendant failed to demonstrate that it did not personally receive notice of the summons in time to defend the action ( see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447; 96 Pierrepont v. Mauro, 304 AD2d 631; Waldon v. Plotkin, 303 AD2d 581).