CPLR § 311 Personal service upon a corporation or governmental subdivision
(a)(1)
CPLR R. 5015 Relief from judgment or order
(a) On motion
CPLR R. 5015(a)(4) lack of jurisdiction to render the judgment or order
CPLR R. 5015(a)(1) excusable default
Aguilera v Pistilli Constr. & Dev. Corp., 2009 NY Slip Op 04844 (App. Div., 2nd, 2009)
The affidavit of the plaintiff's process server showed that on July
25, 2005, Pistilli was served with a summons and complaint by delivery
to its general agent at its office located in Astoria. Since no answer
was served by Pistilli, the plaintiff sought and obtained leave to
enter a default judgment against it.Pistilli sought to vacate the default pursuant to, inter alia,
CPLR 5015(a)(4), claiming that service of process was improper under
CPLR 311(a)(1), and/or pursuant to CPLR 5015(a)(1) on the ground that
its default was excusable. By order dated October 2, 2007, the Supreme
Court, inter alia, directed a hearing to determine whether service of
process was effected. Contrary to Pistilli's position, the Supreme
Court properly ordered the hearing (see CLE Assoc., Inc. v Greene, 43 AD3d 382, 384; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139).Pursuant to CPLR 311(a)(1), service upon a corporation shall be
made by delivering the summons to an officer, director, managing agent,
general agent, cashier, or assistant cashier, or to any other agent
authorized by appointment or by law to receive service. In addition,
service may be made upon someone whom the corporation cloaks with
authority (see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Rokicki v 24 Hour Courier Serv., 282 AD2d 664, 665; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d 591; Seda v Armory Estates, 138 AD2d 362, 363-364).The Supreme Court correctly determined that it acquired
jurisdiction over Pistilli through proper service of process. The
evidence adduced at the hearing established that Angela Rodriguez, to
whom the summons and complaint was delivered, was seated behind the
cashier/reception desk when the process server entered Pistilli's
office, that the process server, who had served Pistilli in the same
office and the same manner on at least three prior occasions, read the
summons and complaint out loud to Rodriguez, and that Rodriguez
informed the process server that she could accept service on behalf of
Pistilli. While Rodriguez claimed that she was not employed by
Pistilli, the record demonstrates that the company by which she was
employed shared offices with Pistilli and was owned by the same
principals. She also testified that service of process was regularly
made by delivering documents to the reception desk for the various
entities that operated out of the same office. Under these
circumstances, "the plaintiff's process server acted reasonably and
with due diligence" and it was reasonable for the process server to
believe that Rodriguez was authorized to accept service on behalf of
Pistilli (Rokicki v 24 Hour Courier Serv., 282 AD2d at 664; see Fashion Page v Zurich Ins. Co., 50 NY2d 265; Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 591; Seda v Armory Estates, 138
AD2d at 363-364). Furthermore, we decline to disturb any credibility
determination made by the hearing court, as its determination is amply
supported by the record (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538).The Supreme Court also properly denied that branch of Pistilli's
renewed motion which was to vacate the default pursuant to CPLR
5015(a)(1). "A party seeking to vacate a default pursuant to CPLR 5015
(a)(1) must demonstrate a reasonable excuse for its delay in appearing
and answering the complaint and a meritorious defense to the action'" (New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442, quoting Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; see CPLR 5015[a][1]; Koyenov v Twin-D Transp., Inc., 33 AD3d 967).
"The decision as to the setting aside of a default in answering is
generally left to the sound discretion of the Supreme Court, the
exercise of which will generally not be disturbed if there is support
in the record therefor" (Mjahdi v Maguire, 21 AD3d 1067, 1068, quoting MacMarty, Inc. v Scheller, 201 AD2d 706, 707).Pistilli failed to offer a reasonable excuse for its failure to answer or appear in this action (see Eastman Kodak Co. v Miller & Miller Consulting Actuaries, 195 AD2d at 592). Contrary [*3]to
Pistilli's position, its default was not attributable to its insurance
carrier's assertion that it would represent it in this matter, as it
was served with the summons and complaint approximately five months
prior to any communication that it received from its insurance carrier
regarding representation (cf. Perez v Linshar Realty Corp., 259
AD2d 532, 533). In view of the lack of a reasonable excuse, it is
unnecessary to consider whether Pistilli sufficiently demonstrated the
existence of a meritorious defense (see Mjahdi v Maguire, 21 AD3d at 1068; Krieger v Cohan, 18 AD3d 823).
The bold is mine.
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