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FGB Realty Advisors, Inc. v. Norm-Rick Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
May 13, 1996
227 A.D.2d 439 (N.Y. App. Div. 1996)

Summary

stating that a failure to notify Secretary of State of change of address "is a breach of the corporate defendant's responsibility" which "does not constitute a reasonable excuse for purposes of vacating a default judgment"

Summary of this case from Nouveau Elevator Industries v. Continental Cas. Ins. Co.

Opinion

May 13, 1996

Appeal from the Supreme Court, Queens County (LeVine, J.).


Ordered that the appeal from the order dated December 9, 1994, is dismissed, as that order was superseded by the order dated April 25, 1995, made upon reargument; and it is further,

Ordered that the order dated April 25, 1995, is affirmed insofar as appealed from; and it is further,

Ordered that the intervenor-respondent is awarded one bill of costs.

Contrary to the appellants' contentions, the court did not err in denying their motion to vacate the default judgment of foreclosure. The record establishes that the foreclosed premises were solely owned by the corporate defendant, Norm-Rick Realty Corp., which was properly served in accordance with the requirements of Business Corporation Law § 306. While the appellants contended that the corporation never received notification because its agent for receipt of process had moved her office several years earlier without having notified the Secretary of State of her new address, this is a breach of the corporate defendant's responsibility which does not constitute a reasonable excuse for purposes of vacating a default judgment ( see, Cedeno v. Wimbledon Bldg. Corp., 207 A.D.2d 297; Associated Imports v. Leon Amiel Publ., 168 A.D.2d 354; Tremont Fed. Sav. Loan Assn. v. Ndanusa, 144 A.D.2d 660; Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621).

Nor have the appellants otherwise demonstrated that they possess a meritorious defense. Contrary to the appellants' contentions, an action to foreclose a mortgage clearly affects title to real property ( see, RPAPL 1353; People's Trust Co. v Tonkonogy, 144 App. Div. 333). Accordingly, pursuant to the express terms of CPLR 3215 (g) (3) (iii) and (4) (iii), the notice provisions of CPLR 3215 (g) (3) and (4) are inapplicable to this case. Therefore, the default judgment of foreclosure is not subject to vacatur for lack of advance notice. Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur.


Summaries of

FGB Realty Advisors, Inc. v. Norm-Rick Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
May 13, 1996
227 A.D.2d 439 (N.Y. App. Div. 1996)

stating that a failure to notify Secretary of State of change of address "is a breach of the corporate defendant's responsibility" which "does not constitute a reasonable excuse for purposes of vacating a default judgment"

Summary of this case from Nouveau Elevator Industries v. Continental Cas. Ins. Co.
Case details for

FGB Realty Advisors, Inc. v. Norm-Rick Realty Corp.

Case Details

Full title:FGB REALTY ADVISORS, INC., Formerly Known as FIRST GIBRALTAR REALTY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 13, 1996

Citations

227 A.D.2d 439 (N.Y. App. Div. 1996)
642 N.Y.S.2d 696

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