Opinion
Index No. 520718/2021
09-23-2022
SIGNATURE FINANCIAL LLC, Plaintiff, v. ENDEAVOR CONSTRUCTION GROUP CORP., and JUDA KLEIN Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN J.
DECISION AND ORDER
Leon Ruchelsman Judge:
The defendant Endeavor Construction Group Corp., moves pursuant to CPLR §2221 seeking to reargue a decision and order dated July 5, 2022. In the prior decision the court held the defendant could not vacate the default since they could not present a reasonable excuse for failing to appear since they had failed to update their address with the Secretary of State. The defendant seeks to reargue that determination. The plaintiff opposes the motion. Papers were submitted by all parties and after reviewing the arguments Of all parties this court now makes the following determination.
As recorded in the prior order, the defendant Endeavor was served via the Secretary of State pursuant to Business Corporation Law §306. Further,1 shortly thereafter the summons and complaint were mailed to Endeavor's address located at 236 Broadway in Kings County pursuant to GPLR §3215 (g) (3) (i) . The defendant failed to answer and the plaintiff moved and obtained a default judgement on December 2, 2021. The court denied the defendant's request seeking to vacate the default, as noted. The court held the failure to update: an address on file with the secretary of state is not a reasonable excuse to vacate a default. The defendant now moves seeking to reargue that determination.
Conclusions of Law
A motion to reargue must be based upon the fact the court overlooked or misapprehended fact or law or for some other reason mistakenly arrived at in its earlier decision. (Deutsche Bank National Trust Co., v. Russo, 170 A.D.3d 952, 96 N.Y.S.2d 617 [2d Dept., 2019]).
The defendant does not present any cases challenging the prior determination that a reasonable excuse cannot be established where the defendant failed to keep its address, current with the secretary of state. Rather, the defendant presents cases that held a reasonable- excuse was found sufficient to- vacate the' default pursuant to CPLR § 317. First, 6 Crannell Street LLC v. Urban Green Equities LLC, 207 A.D.3d 603, 170 N.Y.S.3d 476 [2d Dept., 2022] which held a reasonable excuse was presented did not deal With the secretary of state at all.. The case cited by defendant Stillwell Cafe Inc., 1680 Eastchester Realty Corp., 145 A.D.3d 645, 42 N.Y.S.3d 804 [1st Dept., 2016]; held that ''defendant is not: entitled to relief under CPLR 5015 (a). Defendant failed to demonstrate a reasonable excuse for its default...because there is no explanation as to what prevented defendant from updating its entity information with the Secretary of State Defendant is not entitled to. relief under CPLR 5015 (a)" (id). The court, however, did hold the default should be vacated pursuant to CPLR §317 based on the fact, it presented evidence it did not receive actual notice of the summons and maintained a meritorious defense. However, it is well settled that generally a process server's affidavit provides prima facie evidence of proper service (US National Bank Association v. Melton, 90 A.D.3d 742, 934 N.Y.S.2d 352 [2d Dept., 2011]). To contend that service was improper or that no service took place the defendant must allege facts to; support the contention (Genway Corp. v. Elgut, 177 A.D.2d 467, 575 N.Y.S.2d 899 [2d Dept., 1991], Rox River 83 Partners v. Ettinger, 276 A.D.2d 782, 715 N.Y.S.2d 424 [2d Dept., 2000]). Conclusory denials are insufficient to entitle a defendant to a hearing concerning service (Deutsche Bank National Trust Company v. Hussain, 78 A.D.32d 989, 912 N.Y.S.2d 595 [2d Dept., 2010]). In Caba v. Rai, 63 A.D.3d 578, 882 N.Y.S.2d 56 [1st Dept., 2009] the court specifically held that merely asserting that "I was not served with a summons and verified complaint" is conclusory and insufficient to raise any issue of fact, concerning service.
In this case the only evidence the defendant did not receive the summons and complaint is the affidavit of David Ayzen., a principle of Endeavor who states that Endeavor -never received a copy of the summons and complaint (see, Affidavit of David Ayzen, ¶28 [NYSCEF Doc. #84]). However, as noted, such denial is conclusory and is insufficient to vacate any default. Therefore, .notwithstanding the more relaxed standards of CPLR §317, the defendant has still failed to present any reasonable excuse for failing to appear. Therefore, based on the foregoing the motion seeking reargument is denied.
So ordered.