Opinion
2012-04-3
Christopher KOLONKOWSKI, appellant, v. DAILY NEWS, L.P., respondent.
Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Gregory M. LaSpina and Stephen J. Smith of counsel), for appellant. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Brian M. Martin of counsel), for respondent.
Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Gregory M. LaSpina and Stephen J. Smith of counsel), for appellant. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Brian M. Martin of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered May 31, 2011, which denied his motion pursuant to CPLR 3215(e) for leave to enter judgment on the issue of liability against the defendant upon the defendant's failure to appear or answer the complaint, and granted the defendant's cross motion pursuant to CPLR 3012(d) to compel him to accept its late answer.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion pursuant to 3215(e) for leave to enter judgment on the issue of liability against the defendant upon the defendant's failure to appear or answer the complaint is granted, and the defendant's cross motion pursuant to CPLR 3012(d) to compel the plaintiff to accept its late answer is denied.
The plaintiff demonstrated his entitlement to enter judgment against the defendant upon the defendant's failure to appear or answer the complaint by submitting proof of service of a copy of the summons and complaint upon the defendant, proof of a viable cause of action, and proof that the defendant did not serve a timely answer or motion upon him ( see CPLR 3215[f]; Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70, 760 N.Y.S.2d 727, 790 N.E.2d 1156; Triangle Props. # 2, LLC v. Narang, 73 A.D.3d 1030, 1032, 903 N.Y.S.2d 424; Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218; Matone v. Sycamore Realty Corp., 50 A.D.3d 978, 858 N.Y.S.2d 202).
To avoid the entry of a default judgment, the defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action ( see CPLR 5015[a][1]; Swedbank, AB, N.Y. Branch v. Hale Ave. Borrower, LLC, 89 A.D.3d 922, 932 N.Y.S.2d 540; Ogman v. Mastrantonio Catering, Inc., 82 A.D.3d 852, 853, 918 N.Y.S.2d 375; Mercury Cas. Co. v. Surgical Ctr. at Milburn, LLC, 65 A.D.3d 1102, 885 N.Y.S.2d 218). The process server's affidavit of service created a rebuttable presumption that the plaintiff served the defendant by delivering a copy of the summons and complaint to the Secretary of State ( see CPLR 310–a[a]; Partnership Law § 121–109[a][1]; Thas v. Dayrich Trading, Inc., 78 A.D.3d 1163, 1164, 913 N.Y.S.2d 269; Trini Realty Corp. v. Fulton Ctr. LLC, 53 A.D.3d 479, 861 N.Y.S.2d 743; Commissioners of State Ins. Fund v. Nobre, Inc., 29 A.D.3d 511, 816 N.Y.S.2d 493). In opposition, the defendant did not contend that the address that it had on file with the Secretary of State was incorrect, and the defendant's refusal to accept the duplicate copy of the summons and complaint sent to it by certified mail, return receipt requested, did not constitute a reasonable excuse for the default ( see Matter of Wadlow v. Wadlow, 26 A.D.3d 747, 809 N.Y.S.2d 341; Greyhound Capital Corp. v. EDP Med. Computer Sys., 147 A.D.2d 674, 675, 538 N.Y.S.2d 285; Paul Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622, 511 N.Y.S.2d 58; Rifenburg v. Liffiton Homes, 107 A.D.2d 1015, 486 N.Y.S.2d 529; Cascione v. Acme Equip. Corp., 23 A.D.2d 49, 50, 258 N.Y.S.2d 234). The defendant did not proffer any other excuse for its default, and it did not proffer an excuse for its delay in serving a late answer five months after the time to serve an answer had expired. Accordingly, the plaintiff's motion pursuant to CPLR 3215(e) for leave to enter judgment on the issue of liability against the defendant should have been granted and the defendant's cross motion to compel the plaintiff to accept its late answer should have been denied.