CPLR § 317 Defense by person to whom summons not personally delivered
M. R. v 2526 Valentine LLC, 2009 NY Slip Op 00300 (App. Div., 1st 2009)
"A person served with a summons other than by personal delivery . .
. may be allowed to defend the action within one year after he obtains
knowledge of entry of the judgment . . . upon a finding . . . that [it]
did not personally receive notice of the summons in time to defend and
has a meritorious defense" (CPLR 317). Valentine cannot seek relief
under this statute, which requires [*2]only a showing of a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,
67 NY2d 138 [1986]), because it failed to establish that it had not
received notice of the summons and complaint in time to interpose a
timely appearance or answer (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]; Metropolitan Steel Indus. v Rosenshein Hub Dev. Corp.,
257 AD2d 422 [1999]). Therefore, Valentine must satisfy the
requirements of CPLR 5015(a)(1), wherein a defendant seeking to vacate
a default judgment must demonstrate both a reasonable excuse for its
default and a potentially meritorious defense.Valentine failed to demonstrate a reasonable excuse for its
default. Plaintiff demonstrated that she served Valentine through the
Secretary of State on January 29, 2007 and sent Valentine a letter two
months later informing it that plaintiff would seek a default judgment
if Valentine did not answer or appear within 10 days. Plaintiff also
demonstrated that on January 8 and April 13, 2007, Valentine's insurer
sent Valentine letters stating the insurer's disclaimer of coverage for
the assault. In his conclusory affidavit, Valentine's managing member
did not deny receiving the summons and complaint from the Secretary of
State, plaintiff's letter or the disclaimer letters from Valentine's
insurer, all of which had been sent to Valentine before plaintiff
sought and obtained the default judgment. In light of the disclaimer
letters, which, again, Valentine never denied receiving, its managing
member's stated belief that the insurance company had appeared and
answered was patently insufficient to establish a reasonable excuse for
the default (see Rosario v Beverly Rd. Realty Co., 38 AD3d 875
[2007]). Because Valentine failed, as a matter of law, to proffer a
reasonable excuse for its default, which is a necessary precondition to
relief under CPLR 5015(a)(1), its motion to vacate the judgment must be
denied, regardless of whether Valentine demonstrated a potentially
meritorious defense.
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