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.
