Opinion
March 14, 1995
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
The IAS Court's exercise of discretion in granting defendant's motion to vacate its default was improvident whether pursuant to CPLR 5015 or 317. The record indicates that the sole reason the defendant corporation failed to receive copies of process duly served upon the Secretary of State was that it failed to comply with Business Corporation Law § 306, which requires corporations to keep a current address on file with the Secretary of State. Defendant had been in violation of this provision for some 14 years at the time this action was commenced.
Failure to comply with Business Corporation Law § 306 does not constitute a "reasonable excuse" for a corporation seeking to vacate its default pursuant to CPLR 5015 (a) (1) (Kramer, Levin, Nessen, Kamin Frankel v. International 800 Telecom Corp., 190 A.D.2d 538; Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622). As for CPLR 317, although it does not require a showing of reasonable excuse (supra, at 622, citing Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138) and the lack of a reasonable excuse for failure to comply with Business Corporation Law § 306 does not preclude vacatur thereunder (Stein v Matarasso Co., 143 A.D.2d 825, 826), such relief is nevertheless unwarranted here, since defendant deliberately attempted to avoid notice of this action by failing to update its address for an additional 2 1/2 years after it received actual notice of plaintiff's accident and of the identity of plaintiff's counsel (Conte Cadillac v. C.A.R.S. Purch. Serv., supra).
In either case, defendant failed to set forth a meritorious defense, where its only such offer of proof was in a reply affirmation which stated for the first time, without supporting documentation, that there was a witness who would state that the plaintiff was intoxicated at the time he fell (Azzopardi v American Blower Corp., 192 A.D.2d 453; Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562 [noting that "the function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion"]), and that reply affirmation was prepared by counsel, who had no personal knowledge of the facts (see, Sotirakis v. United Servs. Auto. Assn., 91 A.D.2d 1067 [a party may not rely upon the representations of an attorney who has no personal knowledge of the facts as a sufficient affidavit of merit in an attempt to demonstrate a meritorious defense]).
Concur — Murphy, P.J., Rosenberger, Nardelli and Williams, JJ.