DeLiscav.Courtesy Transportation Ltd.

Appellate Division of the Supreme Court of New York, Second DepartmentApr 26, 2004
6 A.D.3d 646 (N.Y. App. Div. 2004)
6 A.D.3d 646775 N.Y.S.2d 553

2001-04131.

Decided April 26, 2004.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated April 18, 2001, as denied that branch of their motion which was to vacate an order of the same court dated December 6, 2000, granting the plaintiff's motion for leave to enter a default judgment against the defendant Courtesy Transportation Ltd. upon its failure to appear or answer, and setting the matter down for an inquest on damages.

Miranda Sokoloff, LLP, Mineola, N.Y. (Meredith L. Bernstein of counsel), for appellants.

David Resnick Associates, P.C., New York, N.Y., for respondent.

Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants moved, inter alia, to vacate the corporate defendant's default in appearing or answering the complaint, contending that the corporate defendant had not received notice of this action in time to defend, and had a reasonable excuse for its delay and a meritorious defense ( see CPLR 317, 5015[a][1]; Eugene DiLorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138). The corporate defendant failed to establish through competent evidence that it did not receive actual notice of this action in time to defend ( see Fleetwood Park Corp. v. Jerrick Waterproofing Co., 203 A.D.2d 238, 239). While there is no evidence in the record to show that the corporate defendant actually received process from the Secretary of State ( cf. Board of Mgrs. of Landings at Patchogue Condominium v. 263 Riv. Ave. Corp., 243 A.D.2d 668; Fleetwood Park Corp. v. Jerrick Waterproofing Co., supra at 239; Anchor Sav. Bank v. Alpha Developers, 143 A.D.2d 711, 713-714), the plaintiff produced evidence indicating that a copy of the summons and complaint had been sent by certified mail to the corporate defendant at 513 Jewett Avenue in Staten Island as early as July 19, 2000, and that the certified mail receipt had been signed by someone at that address. The corporate defendant failed to controvert this evidence.

Furthermore, the corporate defendant failed to demonstrate a reasonable excuse for its six-month delay in appearing in this action ( see CPLR 5015[a][1]; Dominguez v. Carioscia, 1 A.D.3d 396; East End Christian Academy v. Long Is. Kitchens, 304 A.D.2d 523).

Accordingly, that branch of the motion which was to vacate was properly denied.

SANTUCCI, J.P., SMITH, LUCIANO and ADAMS, JJ., concur.