Newsday, Inc. v. Exotic & Unique Cars, Inc.

Full title: Newsday, Inc., Appellant, v. Exotic & Unique Cars, Inc., Respondent.

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Nov 17, 2011

2011 N.Y. Slip Op. 52135 (N.Y. App. Term 2011)

Opinion

2010-1577 Q C

11-17-2011

Newsday, Inc., Appellant, v. Exotic & Unique Cars, Inc., Respondent.

STEINHARDT

PRESENT: : , J.P., PESCE and WESTON, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 3, 2010. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

In this action to recover monies due for advertising services provided by plaintiff to defendant, the summons and complaint were served upon the Secretary of State pursuant to Business Corporation Law § 306. Upon defendant's default in appearing and answering the complaint, plaintiff obtained a default judgment. By order entered June 3, 2010, defendant's motion to vacate the default judgment was granted. On appeal, plaintiff contends that defendant failed to demonstrate a reasonable excuse for its default and a meritorious defense.

The failure of the corporate defendant to receive service of process due to its breach of its obligation to keep a current and correct address on file with the Secretary of State (Business Corporation Law § 306) does not constitute a reasonable excuse for its default (see Widgren v 313 E. 9th Assoc., 295 AD2d 146 [2002]; Crespo v A.D.A. Mgt., 292 AD2d 5 [2002]; Cedeno v Wimbledon Bldg. Corp., 207 AD2d 297 [1994]; Long Is. Indus. Group Two LLC v Prime Communications Inc., 13 Misc 3d 127[A], 2006 NY Slip Op 51668[U] [App Term, 9th & 10th Jud Dists 2006]). In addition, defendant's conclusory claim that it had paid plaintiff all advertising bills due was insufficient to establish a meritorious defense (see Berardo v Berardo, 205 AD2d 1036 [1994]; Lease Factor, Inc. v Kemcy Model Agency, Inc., 201 AD2d 624 [1994]; Lener v Club Med. Inc., 168 AD2d 433 [1990]; Wilcox v Parkland Development Corp., 157 AD2d 998 [1990]; Farrar v Archer, 125 AD2d 953 [1986]). In light of the fact that defendant failed to demonstrate a reasonable excuse for its default and a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), the order is reversed, defendant's motion to vacate the default judgment is denied and the default judgment is reinstated.

Steinhardt, J.P., Pesce and Weston, JJ., concur.