Associated Importsv.Leon Amiel Publisher

Appellate Division of the Supreme Court of New York, First DepartmentDec 18, 1990
168 A.D.2d 354 (N.Y. App. Div. 1990)
168 A.D.2d 354562 N.Y.S.2d 678

December 18, 1990

Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).

The corporate defendants moved to vacate a default judgment pursuant to CPLR 317 and 5015 on the grounds that they had not received the summons and complaint, as they had inadvertently failed to correct the address of their designated agent with the Secretary of State, and had no notice of the action. The court denied the motion, finding that service was properly made on the Secretary of State, but that the corporate defendants had actual notice of the proceedings as the process had been forwarded to counsel. The court also found that there was no showing of a meritorious defense which would warrant vacatur of the default.

The failure of defendants to make the required showing of lack of notice and meritorious defense under CPLR 317, or excusable default and a meritorious defense under CPLR 5015 (a), warranted denial of their motion to vacate the default. (Anchor Sav. Bank v. Alpha Developers, 143 A.D.2d 711, lv. dismissed 73 N.Y.2d 907.) The record reveals that the corporate defendants had actual notice of the summons and complaint in time to defend. Further, service of process on a corporation is complete when the Secretary of State is served irrespective of whether the process subsequently reaches the corporate defendant (see, e.g., Micarelli v. Regal Apparel, 52 A.D.2d 524). Nor does failure to keep a current address of an agent on file with the Secretary of State constitute a reasonable excuse for the default (see, Conte Cadillac v. C.A.R.S. Purchasing Serv., 126 A.D.2d 621). Finally, the defendants failed to demonstrate a meritorious defense to liability in the balance of a comprehensive settlement agreement which had been partly performed by a last payment in excess of $200,000.

Concur — Rosenberger, J.P., Asch, Kassal, Wallach and Smith, JJ.