Thursday, March 20, 2014

Vacating a default judgment.

Practice proint:  The defendant was not entitled to vacatur of its default pursuant to CPLR 317. The defendant failed to rebut the plaintiff's evidence that, for a period of more than five years, the defendant failed to file with the Secretary of State the required biennial form that would have apprised the Secretary of its current address, pursuant to Limited Liability Company Law § 301[e]). TheAppellate Division found that the defendants' failure to personally receive copies of the summons and complaint was a result of a deliberate attempt to avoid notice of actions commenced against it.

Student note:  To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense, pursuant to CPLR 5015[a][1].  Here, the defendant contended that it maintained an old address on file with the Secretary of State, and denied receipt of copies of the summons and complaint. However, the Appellate Division held that the defendant's unexplained failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse.

Case:  Cruz v. Keter Residence, LLC, NY Slip Op 01575 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Duties relating to an easement.