On July 6, 2011, default judgment was rendered in this action in favor of plaintiff Chemung Canal Trust Company (CCTC) against Marvin G. Marshall and Patricia J. Marshall (herein Marshalls or defendants) for $3,053,882.21 and against RPM Ecosystems of Ithaca, LLC and RPM Holdings, LLC for $3,745,355.66.^[FN1] On July 31, 2012, the judgment was assigned to Wayne Lovelace and Judy Lovelace (herein referred to as plaintiffs). Marshalls moved, by order to show cause signed on September 25, 2012, to vacate the judgment. In support of their motion, they argued that the judgment must be vacated: (1) pursuant to CPLR 5015(a)(4), due to a lack of personal jurisdiction; (2) pursuant to CPLR 5015(a)(1) and 317, on the basis that they have reasonable excuses for their defaults and a meritorious defense to the action; or (3) in the interest of justice. The court concluded that there were issues of fact with respect to whether both Marshalls had been served, sufficient to require a traverse hearing, which was held on May 7, 2013 and October 17, 2013.^[FN2]

PERSONAL DELIVERY SERVICE ON MARVIN MARSHALL

Plaintiffs bear the burden of proving by a preponderance of the evidence that personal jurisdiction over defendants was acquired by proper service of process (see TD Banknorth, N.A. v Olsen, 112 AD3d 1169 [2013], citing Emigrant Mtge. Co. Inc. v Westervelt, 105 AD3d 896 [2013], lv dismissed 22 NY3d 947 [2013], Gottesman v Friedman, 90 AD3d 608, 609 [2011], lv dismissed 19 NY3d 897 [2012]). Plaintiffs' process server, James Inman, testified that he served Marvin Marshall in the offices of RPM, located in Suite 139 at 95 Brown Road on April 18, 2011 at approximately 10:45 a.m. with the summons and complaint in this action and with the summons and complaint in a related mortgage foreclosure action (Sup Ct, Tompkins Co., Index No. 2011-0359; herein the foreclosure action). He testified that when he entered the office, he observed a man sitting in a chair who responded affirmatively when Inman said "Excuse me, Marvin Marshall?" He further testified that he delivered copies of the summons and complaint in each action to Marshall, explained the nature of the papers, and specifically advised Marshall that they involved two separate cases. Inman testified that he has been a process server since 1995, and that when serving legal documents, he follows a procedure of preparing contemporaneous notes documenting facts related to service, from which he later prepares affidavits of service and makes entries in a log book which he maintains. The affidavits of [*2]service, notes, and the relevant page from his logbook were received in evidence (Plaintiffs' Exhibits 5 — 8), and corroborate his testimony regarding service. Notably, he unequivocally testified that Marvin Marshall, who was present at the hearing while Inman was testifying, was the person he served on April 18, 2011.

Defendants argue that plaintiffs failed to meet their initial burden of proof in light of the discrepancy between the description of the person served contained in the affidavit of service prepared by Inman and Marshall's actual appearance. The affidavit of service describes the person served as a white male, with brown hair and glasses, who was 51 - 65 years old, 5' 9" tall, and weighed 161 - 200 pounds. Defendants contend that the affidavit cannot describe Marshall, who is balding, has gray hair, was 74 years old at the time of service, and does not wear glasses. They do not contest that he is a white male of the height and weight noted in the affidavit of service.

Inman was asked about the purported discrepancies on cross-examination. He opined that the apparent hair color could be affected by lighting in the office or the angle at which he viewed the person who was served. Inman estimated Marshall's age during the hearing as 65 -70, explained that he estimated his age to be 65 at the time of service, and indicated that he checked the box for the age category 51 - 65, rather than over 65, because Marshall appeared to him to be 65 years old. Based on the court's viewing of Marshall, an estimate that he was 65 years old at the time of service is reasonable.

Although not mentioned during testimony, the court finds it significant that Marshall submitted an affidavit in which he stated that "I do not wear glasses (I do have reading glasses, which I only put on when holding a document to read)" (Affidavit of Marvin G. Marshall, sworn to on November 29, 2012, ¶ 5 [emphasis supplied]). Inasmuch as Inman says that Marshall was in his office when he was served and received legal documents, it is likely that Marshall would have been wearing his reading glasses, or that they would have at least been in sight under such circumstances.

Prior to the hearing, Marshall offered a "guess" that Inman may have served another person who worked for the RPM companies on the date of service, Tom Yacavone (see Affidavit of Marvin G. Marshall, sworn to on November 29, 2012, ¶ 7). Defendants offered no testimony at trial in support of that theory, and did not argue that point in their closing memorandum. However, Inman testified that he knows Tom Yacavone — having effected service on him on two occasions, the most recent being just a few months prior to the May 7, 2013 hearing — that he does not confuse the appearances of Marshall and Yacavone, and that he served Marshall — not Yacavone — on April 18, 2011. Yacavone testified that he worked as an accountant/bookkeeper for the RPM companies from October 2008 through May of 2011, and that he does not recall ever having been served with process while he was employed by RPM. At this point, it bears noting that the court found Inman and Yacavone to be forthright and credible witnesses (see Gottesman, 90 AD3d at 609 — 610 [the trial court's credibility determinations are entitled to deference] see also Caci v State of New York, 107 AD3d 1121,1124 [2013] Matter of DeMeo v City of Albany, 63 AD3d 1272 [2009] Demakis v Papadopoulos, 259 AD2d 461 [1999]). Their respective testimony remained consistent and Yacavone's testimony corroborated Inman's testimony. The court's view of Yacavone's credibility was also enhanced by the fact that he readily admitted when he could not remember certain facts. [*3]

In light of Inman's in-court identification of Marshall as the person served, his testimony explaining the purported discrepancies in appearance, Marshall's admission that he wears reading glasses, and Marshall's actual in-court appearance, the court finds that the purported discrepancies in the description of personal appearance are not significant and do not preclude plaintiffs from having met their initial burden of proof that Inman personally served Marvin Marshall on April 18, 2011 at 10:45 a.m. (see Kardanis v Velis, 90 AD2d 727 [1982] [inconsistencies between the description of the defendant in the affidavit of the service and as he appeared in court were not significant, and were overlooked in light of the process server having unequivocally testified at the traverse hearing that he personally served the defendant] see also Rowlan v Brooklyn Jewish Hosp., 100 AD2d 844 [1984] [discrepancies in the process server's testimony were overlooked, where he identified the defendant in court as the person served and where his account of events was inherently more probable than the defendant's] cf. Holtzer v Stepper, 268 AD2d 372 [2000] [unidentified significant discrepancies between the defendant's physical appearance and the description in the affidavit of service could not be overlooked in light of the failure of the process server to identify the defendant at the traverse hearing] Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 — 140 [1986] [same]).^[FN3]

In support of defendants' motion to vacate the default judgment, Marvin Marshall provided an evolving explanation for his assertion that he had not been personally served. He first claimed that he recalled being served with the summons and complaint in the foreclosure action, but that he had no recollection of being served in this action (see Affidavit of Marvin Marshall, sworn to September 19, 2012, ¶¶ 3 — 6). He then submitted an affidavit claiming that the description in the affidavit of service did not describe him, and suggesting that the documents may have instead been delivered to Yacavone (see Affidavit of Marvin Marshall, sworn to November 29, 2012, ¶¶ 3 — 7). Plaintiffs' counsel submitted an affidavit pointing out that Marshall acknowledged that he had been served in the foreclosure action, and that the affidavits of service prepared by Inman showed that Marshall was served in both actions at the same time and place, namely, April 18, 2011 at 10:45 a.m. at 95 Brown Road, #139. In response, Marshall attempted to explain the inconsistency inherent in his initial statement by characterizing it as imprecise and claiming that he only remembered viewing the documents in the foreclosure action before an answer was due (see Affidavit of Marvin Marshall, sworn to December 18, 2012, ¶ 5).

At the traverse hearing, Marshal again shifted course, claiming for the first time that when service was purportedly made on Monday, April 18, 2011, he was in the State of Louisiana — not Ithaca — for the purpose of participating in a wetland restoration project in the Gulf of [*4]Mexico with an organization known as Restore the Earth. He claims to have driven from Ithaca to Venice, Louisiana on the preceding weekend, arriving on Sunday, April 17, 2011, where he stayed at the Lighthouse Lodge for two nights. He testified that the project — which he referred to as a deployment — involved planting native plants in the Gulf by placement of "gulfsaver bags," which are burlap sacks containing vegetation, soil and nutrients (see e.g. Defendant's Exhibit B [pictures purportedly showing Marshall at the deployment on April 18, 2011). He testified that he participated in the deployment on April 18, 2011 and left for the return drive to Ithaca on April 19. He admitted that he was in Ithaca on April 20, 2011, when he purchased gasoline at Tops Fuel located on North Triphammer Road at 8:05 a.m., as documented by his RPM expense report and attached credit card receipt (see Plaintiffs' Exhibit 29). On the second day of the hearing, defendants elicited testimony from several other witnesses attempting to corroborate Marshall's claim that he was in Louisiana on the morning of April 18, and plaintiffs offered rebuttal testimony and evidence intended to show that Marshall was actually in RPM's office in Ithaca on April 18, 2011.

Defendants' account of events — referred to in their closing memorandum as Marshall's alibi — is implausible for the following reasons: (1) the testimony of Marvin Marshall and Patricia (PJ) Marshall was not credible; (2) Shane Granier admitted that he could not specifically recall whether Marshall was present at the April 18, 2011 deployment; (3) the account contains numerous inconsistencies that were not explained and that cannot be overlooked; and (4) plaintiffs' rebuttal evidence tends to show that Marshall was, in fact, in RPM's office on the morning of April 18, 2011.

As noted, the court did not find Marvin Marshall or PJ Marshall to be credible witnesses, based on its observation of their testimony during the hearing and the fact that both repeatedly provided testimony that was inconsistent or incredible, including numerous implausible — and shifting — explanations for inconvenient facts. Marvin Marshall initially stated that he clearly recalled being served in the foreclosure action, and that he immediately took steps to provide the documents to his attorney (see Affidavit of Marvin Marshall, sworn to September 19, 2012, ¶¶ 4 — 5). Only after plaintiffs' counsel pointed out that the summonses and complaints for the foreclosure action and this action were served on him at the same time did Marshall change his story, by providing an affidavit asserting that his original, unequivocal statement — that he specifically recalled service — was somehow "imprecise" and that he should really have said that he recalls only receiving and reviewing the documents in the foreclosure action before an answer was due (see Affidavit of Marvin Marshall, sworn to December 18, 2012, ¶ 5). At the first day of the hearing, held on May 7, 2013, Marshall testified that he could not recall whether he paid his travel expenses for the trip to Louisiana by cash or credit card. By contrast, he testified at the second day of the hearing, held on October 17, 2013, that he paid those expenses with cash.

Moreover, his explanation for why he did not sooner realize that he had been in Louisiana on April 18 is incredible, or otherwise evinces a lack of candor. He first stated that he had reviewed a copy of the affidavit of service showing the location of service (see Affidavit of Marvin Marshall, sworn to September 19, 2012, ¶ 3), and he later referenced the physical description of the person served contained in the affidavit of service (see Affidavit of Marvin Marshall, sworn to November 29, 2012, ¶¶ 3, 6). Yet he testified that he misunderstood the date [*5]of service — which is recorded in the same line as the date and place of service — as being April 6 or April 8, and that his error was in confusing the date that the affidavit was filed with the date of service. His explanation makes no sense. It bears noting that the record reflects that he was provided with copies of the affidavits of service during this portion of his testimony, that the affidavits are single-page documents nowhere showing a date of April 6 or April 8, and that date stamps on the affidavits show that they were both filed on April 28, 2011 (see Plaintiffs' Exhibits 5 and 6).

PJ Marshall gave inconsistent testimony about her activities on April 18, 2011. On May 7, she testified that she was in Venice for the deployment and that Marvin was also there. Notably, she testified that when plants were delivered to the dock on the morning of April 18 she was not personally present, but was an hour and a half off shore at the site where the planting was to occur. Inconsistent with this version of events, her testimony on October 17 was that she was present at the dock, or launch site, when the plants were delivered by Aaron Pierce and that she saw her husband at the launch site at that time.^[FN4] Moreover, it bears noting that either version of PJ's Marshall's testimony — either that she was at the off-shore planting site when the plants were delivered or that she was present at the dock for their delivery — is inconsistent with Marvin's testimony that he signed for the plants when they were delivered because PJ was on her way to the dock.

Shane Granier's testimony that Marvin was present for the April 18, 2011 deployment, beginning at 7:00 a.m., has not been credited, in light of his admission that he could not specifically recall the events of that day, but assumed that Marshall was present based on the process that was typically followed for such deployments. The earliest that either of the other two witnesses called by defendants to testify about Marvin's presence at the deployment — Amelia LeGaux and Thomas Pepper — could place him in Louisiana was at 8:00 p.m. on April 18. In other words, the only testimony placing Marvin Marshall at the deployment on the morning of April 18, 2011 comes from Marvin Marshall and PJ Marshall, whom the court does find to be credible witnesses.

Moreover, there are numerous inconsistencies in defendants' version of events that — in total — cannot be overlooked and, further, serve to demonstrate that plaintiffs' version of events is inherently more probable than defendants' (see Caci, 107 AD3d at 1124 [inconsistencies in plaintiff's proof could not be overlooked when all proof was viewed in its totality and deference was granted to the trial court's assessment of the process server's credibility] Kardanis, 90 AD2d at 727 [despite certain discrepancies in the process server's testimony, his account was inherently more probable than the defendant's]). Frankly, the number and degree of inconsistencies in defendants' version of events overwhelms the modest discrepancies, of which defendants are critical, between the description of the person served in the affidavits of service and Marshall's [*6]actual appearance.

Marshall testified that after arriving in the state only two days earlier, he left Louisiana very early on April 19 to drive back to Ithaca in a single day, a trip he says takes 17 — 18 hours, and that he purchased gas in Ithaca at 8:05 a.m. on April 20, 2011. His testimony that the trip requires, at most, 18 hours by car is belied by the facts, of which the court takes judicial notice, that the distance of the most direct route from the Lighthouse Lodge in Venice, Louisiana to Marshall's home in Ithaca is over 1,430 miles, and that the estimated driving time is over 21 hours.^[FN5] Moreover, his testimony that he left early in the morning of April 19 and was in Ithaca early on April 20 cannot be squared with that of witnesses called by defendants who claim to have seen him in Louisiana during the evening of April 19. LeGaux testified that Marvin Marshall participated in the deployment on April 19, that she had dinner that evening with a group of people who had worked on the deployment that day — including both Marvin Marshall and PJ Marshall — at a restaurant near Venice, and that she saw both Marshalls in New Orleans as late as 11:00 p.m. on that date. Peppers testified that he participated in the deployment, that he had a specific recollection of seeing Marvin Marshall at 8:00 a.m. on April 19, 2011, that he also had dinner that evening at a restaurant near Venice with a group that included Marvin Marshall and PJ Marshall, and that the last time that he saw Marvin Marshall on April 19 was at 9:00 p.m., when Pepper left to return to New Orleans. Granier's testimony regarding the pictures submitted by defendants (Defendants' Exhibit B) is similarly inconsistent with Marshall's testimony that he left Louisiana early on April 19 and, also, with Marshall's testimony that the pictures depict him on April 18. Although, as noted, Granier did not have a specific recollection of the April 2011 deployment, he testified that if the picture depicting Marshall standing next to a boat loaded with burlap bags containing plants was taken during the April deployment, it would have to have been taken on the second day of the deployment — April 19. Granier also provided testimony significantly calling into question whether the photographs were taken during the April deployment. He testified that the boat depicted is owned by Earl Armstrong, who participated in a previous deployment, but not the April 2011 deployment.

Moreover, it is difficult to believe that anyone would make a round trip drive taking in [*7]excess of forty hours to participate in one day of the deployment. The invoice and credit card receipt for four nights of lodging at the Lighthouse Lodge (Defendants' Exhibit A) are not persuasive evidence that Marshall participated in the deployment on April 18, 2011. The invoice shows that Marvin Marshall was billed for four nights of single occupancy, from April 17 through April 20, and that the charge was paid by credit card on April 21, 2011. Marshalls testified that they stayed at the Lighthouse Lodge regularly whenever in town to participate in a deployment and that the Restore the Earth credit card used to pay the invoice was kept on file with the Lodge for that purpose. There was testimony that PJ Marshall stayed in the room. There is no receipt or other dated item bearing Marvin's signature. Under such circumstances, an invoice in his name that was paid by another party's credit card is not probative of his presence in Louisiana on the morning of April 18, 2011.

In rebuttal, plaintiffs called Yacavone, whose testimony provides circumstantial evidence tending to show that Marshall was in RPM's office in Ithaca at some point prior to 1:13 p.m. on April 18, 2011. Yacavone testified that one of his responsibilities was preparation of a monthly operating report that the RPM companies were required to file in a pending bankruptcy proceeding. The report that Yacavone prepared for March 2011 was received in evidence as Plaintiff's Exhibit 39. Yacavone identified the signature on the report as being Marvin Marshall's, and also testified that the date of April 18, 2011 was written in Marshall's handwriting. Yacavone testified that after the report was signed, he sent it to RPM's bankruptcy attorney in two separate emails, due to its large size, that were sent on April 18 at 1:13 p.m. and 1:14 p.m. respectively (see Plaintiff's Exhibits 41 and 42). Yacavone does not specifically recall whether Marshall was in RPM's offices on April 18, 2011, and did not witness Marshall signing the report. Marshall admits that he signed the document and dated it April 18, 2011, but testifies that he must have reviewed it on an unspecified date prior to April 18 and post-dated it to ensure that it could be timely submitted. Yacavone testified that there was no reason for a report to be post-dated, explaining that the date on which a report was signed was irrelevant, so long as RPM met the mandated filing deadline of the twentieth of the month. Moreover, he testified that RPM filed approximately ten operating reports during the pendency of its bankruptcy proceeding and that he did not recall a single instance in which Marshall had signed a monthly operating report and placed a date on it other than the date on which he actually signed it.

For the foregoing reasons, the court concludes that plaintiffs have established by a preponderance of the evidence that Marvin Marshall was personally served with the summons and complaint in this action at 10:45 a.m. on April 18, 2011 in the RPM offices located in Suite 139, 95 Brown Road, Ithaca.

DELIVER-AND-MAIL SERVICE ON PATRICIA MARSHALL

Plaintiffs assert that service upon PJ Marshall in this action was completed, pursuant to CPLR 308(2), by delivery to a person of suitable age and discretion, namely, Marvin Marshall, at RPM's offices at 1:40 p.m. on April 28, 2011, mailing of copies of the summons and complaint to her residence sent on that same date, and filing of an affidavit of service on April 29, 2013 (see Plaintiff's Exhibit 9; testimony of Inman). At the hearing, defendants limited their argument to the claim that service was not properly effected on PJ Marshall because RPM's office was not her [*8]actual place of business.^[FN6] In that regard, PJ Marshall testified that she ceased working for RPM and began working for Restore the Earth in the summer of 2010, and that she worked for Restore the Earth in an office it leased at Suite 136 at 95 Brown Road beginning in August 2010 that was entirely separate and distinct from RPM's office in Suite 139.

Plaintiffs submitted testimony establishing that PJ Marshall continued to provide services to RPM through April 2011. Yacavone testified that PJ was dividing her time between RPM and Restore the Earth. When asked during cross-examination if he could "recall a time when she at some point was working entirely for Restore the Earth and no longer for RPM," he responded by saying no, and added that PJ continued to be an involved a member of the RPM team who was often present for meetings. Yacavone's testimony is corroborated by documentary evidence showing that PJ: (1) received a salary by RPM for services rendered in April 2011 (Plaintiffs' Exhibits 37, 40);^[FN7] (2) signed or endorsed checks on RPM's behalf in April 2011 (Plaintiffs' Exhibits 12, 21, 32); (3) received reimbursement from RPM for expenses incurred on RPM's behalf in April 2011 (Plaintiffs' Exhibits 12, 33); and (4) that she performed similar services, received compensation, and was reimbursed for expenses for other times when she claimed that she was no longer working for RPM (see e.g. Plaintiff's Exhibits 10, 11,17, 21, 22, 34, 39). PJ also testified that she was a member of the RPM limited liability companies. Yacavone also testified that any legal documents delivered to RPM's offices would be sent directly to either Mr. Marshall or Mrs. Marshall, which is consistent with Marvin Marshall's statement that RPM had a procedure for handling legal documents to ensure that they would be forwarded to legal counsel (see Affidavit of Marvin Marshall, sworn to November 29, 2012, ¶ 8; Affidavit of Marvin Marshall, sworn to December 18, 2012, ¶¶ 6, 8; Defendants' Closing Memorandum dated November 22, 2013, p. 4, n. 3).

The evidence establishes that PJ Marshall was a member of the RPM limited liability companies that maintained their offices at Suite 139, 95 Brown Road, Ithaca, that she performed services for RPM during April 2011, that she worked in close proximity to RPM's office during April 2011 and was often present in RPM's offices to perform tasks or attend meetings, and that there was a procedure in place to ensure that she would receive items delivered to her at RPM's office. Such proof is sufficient to establish that RPM's offices were an actual place of business [*9]for PJ Marshall, even though it may not have been her only actual place of business (see Gibson, Dunn & Crutcher v Global Nuclear Servs. & Supply, 280 AD2d 360 [2001] see also Columbus Realty Inv. Corp. v Weng-Heng Tsiang, 226 AD2d 259 [1996] White Rose, Inc. v Newtown Food Market, Inc., 37 Misc 3d 1201[A], 2012 NY Slip Op 51840[U] [2012] see also Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C308:3, p. 199 [recommending that the test for establishing a defendant's actual place of business for purposes of service should be whether prompt redelivery to the defendant is likely to occur]). Accordingly, the court finds that plaintiffs have established by a preponderance of the evidence that PJ Marshall was properly served with the summons and complaint in this action, pursuant to CPLR 308(2).

ALTERNATIVE RELIEF FROM JUDGMENT UNDER CPLR

Having concluded that the default judgment may not be vacated against either Marvin Marshall or PJ Marshall for lack of personal jurisdiction, the court will consider their alternative arguments that it should be vacated pursuant to CPLR 317 or CPLR 5015(a)(1). A defendant who is served by other than personal delivery — like PJ Marshall — may seek to vacate a default judgment under CPLR 317 by showing that he or she did not receive notice of the pending lawsuit in time to defend and that he or she has a meritorious defense (see Brightly v Florida N., Inc., 54 AD3d 1127 [2008]). PJ Marshall avers that she did not learn of this action until August 2012 (see Affidavit of Patricia Marshall, sworn to September 19, 2012, ¶ 5). She denies receiving copies of the summons and complaint that were delivered to her husband, mailed to her residence by Inman, and mailed to her residence by plaintiff's law firm. Plaintiff established that Inman mailed copies of the summons and complaint to defendant at her correct residence address of 17 Observatory Circle, Ithaca, New York on April 28, 2011. Her uncorroborated assertion that she did not receive the notice sent by mail is insufficient to rebut the presumption that a properly addressed mailing was received by her (id.; see also Deutsche Bank Natl. Trust Co. v Matos, 77 AD3d 606 [2010]). Accordingly, the judgment against PJ Marshall may not be vacated pursuant to CPLR 317.

To obtain vacatur of a default judgment pursuant to CPLR 5015(a)(1), a party must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Cotter, 110 AD3d 1331). Inasmuch as the court has concluded that it acquired personal jurisdiction over the defendants by proper service of process, the only remaining excuse offered by defendants for their default is their conclusory denial that they received the copies of the summons and complaint purportedly sent to them by plaintiff's law firm to comply with the additional notice provisions of CPLR 3215(g)(3) (see Affidavit of Marvin Marshall, sworn to September 19, 2012, ¶ 8; Affidavit of Patricia Marshall, sworn to September 19, 2012, ¶ 2). This excuse is insufficient for several reasons. First, defendants have not rebutted the presumption that they received the additional notice. Defendants rely on the fact that the mailings were sent to the incorrect residence address of 16 Observatory Circle, rather than their actual address of 17 Observatory Circle (see Affidavit of Marvin Marshall, sworn to September 19, 2012, ¶ 10; Affidavit of Patricia Marshall, sworn to September 19, 2012, ¶ 14). However, plaintiffs submitted proof in opposition to the original motion — which was not rebutted by defendants — sufficient to establish that mail addressed to defendants at 16 Observatory Circle was virtually certain to have been delivered to defendants at 17 Observatory Circle, thereby entitling such [*10]mailings to the presumption of delivery (see e.g. Capital Compost & Waste Reduction Servs., LLC v MacDonald, 73 AD3d 1311 [2010] Cadle Co. v Tri-Angle Assoc., 18 AD3d 100 [2005] Taft v Lesko, 182 AD2d 1008 [1992] Augusta Lbr. & Supply v Sabbeth Corp., 101 AD2d 846 [1984] Donohue v La Pierre, 99 AD2d 570 [1984] Brownell v Feingold, 82 AD2d 844 [1981]). In that regard, plaintiffs submitted: (1) proof that there is no structure located at 16 Observatory Circle; (2) proof that the postal carrier who would have been on duty during the dates in question was very familiar with Marshalls' address and would most likely have delivered any mail incorrectly addressed to them at 16 Observatory Circle to them or, alternatively, would have returned it to the sender; and (3) significantly, direct proof that the mailings were not returned to the Crossmore Law Office, which sent them (see Affidavit of James Inman, sworn to November 21, 2012, ¶¶ 7 — 13; Affidavit of Edward Y. Crossmore, sworn to November 23, 2012, ¶¶ 45 — 48). Accordingly, defendants' conclusory claim that they did not receive the additional notice sent by the Crossmore Law Office is insufficient to rebut the presumption of delivery.

Second, the failure to receive the additional notice sent to comply with CPLR 3215(g)(3) does not provide any explanation for defendants' default in answering the copies of the complaint that the court concluded were properly served upon them. Finally, where a defendant has been served in accordance with CPLR 308, even a complete failure to comply with the further notice requirements of CPLR 3215(g)(3) does not warrant vacatur of a default judgment (see Kurtz v Mitchell, 27 AD3d 697 [2006] Rothschild v Finkelstein, 248 AD2d 701 [1998], citing Fleet Fin. v Nielsen, 234 AD2d 728, 729 — 730 [1996]).

Where, as here, a defendant fails to offer a reasonable excuse for the default, it is not necessary to address whether he or she has shown a meritorious defense to the action (see Cotter, 110 AD3d 1331; Kranenburg v Butwell, 34 AD3d 1005 [2006] Pagano v U.W. Marx, Inc., 223 AD2d 817 [1996]). Indeed, a motion to vacate a default judgment is properly denied for the failure to show a reasonable excuse for the default, even where the existence of a meritorious defense is established (see e.g. Marine Midland Bank, N.A. v Fanning, 233 AD2d 600 [1996]). Accordingly, the judgment may not be vacated pursuant to CPLR 5015(a)(1).

RELIEF FROM JUDGMENT IN THE INTEREST OF JUSTICE

Although defendants did not extensively argue the issue, they raised the argument that the judgment should be vacated in the interest of justice (see order to show cause dated September 25, 2012 [moving to vacate the default judgment, without specifying the grounds upon which such relief was sought] see also Memorandum of Law dated September 24, 2012, p. 4 [citing Kostun v Gower, 61 AD3d 1307 (2009) for the proposition that courts have the inherent power to forgive even an unexplained default in the interest of justice] Affidavit of Patricia Marshall, sworn to September 19, 2012, ¶ 4 [accusing Lovelaces of a litany of wrongs and arguing that they should not be permitted to use the court to achieve unjust results]). In that regard,

"the grounds set forth in CPLR 5015 are not exclusive, and courts retain inherent discretionary power' to vacate their own judgments for sufficient reason and in the interests of substantial justice' (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003] Boyd v Town of N. Elba, 28 AD3d 929, 931 [2006], lv dismissed 7 NY3d 783 [2006] Matter of Culberson, 11 AD3d 859, 861 [2004]). Notably, the decision to vacate a default judgment lies within the discretion of the trial court . . . [and] should not be disturbed unless it reflects an "improvident exercise of discretion"' (Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 773 [*11][2000], quoting Lucas v United Helpers Cedars Nursing Home, 239 AD2d 853, 853 [1997])."

Gurin v Pogge, 112 AD3d 1028 (2013). A court's inherent discretionary power recognizes the strong policy preference for resolving disputes on the merits (id. at 1030, citing Kostun v Gower; see also Bond v Giebel, 101 AD3d 1340, 1343 [2012], lv dismissed 21 NY3d 884 [2013]).

Defendants argue that it would be inequitable to permit Lovelaces to enforce the three million dollar judgment taken by default in this action while a claim that defendants have asserted against Lovelaces for more than five million dollars — which they allege is related to the loan transaction at issue in this action — is pending.^[FN8] Specifically, defendants allege that they agreed to form a business with Lovelaces to capitalize on a patented technology that creates fast-growing trees, called the Root Production Method. Defendants further allege that Lovelaces represented that they owned the patent and associated legal rights to the Root Production Method (the patent and associated legal rights being referred to herein as the Root Production Method intellectual property, or RPMIP), and that they agreed to transfer those rights to a limited liability company owned by them — RPM Technologies — that would, in turn, license substantially all of those rights to a limited liability company to be jointly owned by defendants and the Lovelaces — RPM Holdings. Defendants aver that the RPMIP that Lovelaces were obligated to contribute to the joint venture was valued at one million dollars, that defendants initially contributed real property and cash valued at one million dollars to the venture, and that the resulting business also obtained financing from Chemung Canal Trust Company (CCTC) — the original plaintiff in this action. The default judgment taken against Marshalls in this action was based on their personal guarantees of a portion of the CCTC indebtedness.

Defendants allege that Lovelaces did not permanently assign the RPMIP to RPM Technologies but, rather, engaged in a series of assignments that resulted in the RPMIP being owned instead by Lovelaces, individually. To support this allegation, defendants submitted a Patent Assignment Abstract of Title purportedly issued by the United States Patent and Trademark Office (see Elia "Affidavit," Exhibit K), which shows that: (1) the legal owner of record to the patent when the various RPM Operating Agreements were executed in 2006 and 2007 was Forrest Keeling Nursery, Inc. — not Lovelaces; (2) Wayne and Judy Lovelace transferred the patent to RPM Technologies, LLC by assignment executed November 17, 2008 and recorded on December 28, 2009; and (3) RPM Technologies transferred the patent back to Wayne and Judy Lovelace by assignment dated and recorded on December 28, 2009. Defendants further allege that the joint venture failed upon discovery that it did not have legal rights to the [*12]RPMIP — directly causing a default on the CCTC loans — and, further, that Lovelaces are obligated to indemnify them for losses associated with failure of the joint venture, including any obligation to pay on the personal guarantees at issue in this action. Lovelaces have not disclosed to the court the consideration that they may have paid to acquire the default judgment against Marshalls.

Dealings between Marshalls and Lovelaces were not relevant to CCTC's enforcement of the loan guarantee against Marshalls, which resulted in the default judgment against Marshalls. However, factors arising after entry of a default judgment, such as an assignment of judgment, are properly considered when deciding whether to vacate a default judgment (see Bond, 101 AD3d 1340). In this case, defendants have sufficiently demonstrated the existence of a genuine dispute between them and the Lovelaces that is relevant to Lovelaces' acquisition and attempted enforcement of the default judgment entered in this action. In that regard, it bears emphasizing that defendants have submitted evidence that appears to document their claim that their liability to pay under the CCTC loan guarantees resulted directly from Lovelaces breach of their obligation to permanently transfer the RPMIP to RPM Technologies. Thus, allowing Lovelaces to enforce a three million dollar default judgment while all other claims among the parties are pending would offend the court's "sense of justice and propriety and cannot be condoned" (Bond, 101 AD3d at 1343). Accordingly, to allow resolution of the entire dispute between the parties to be decided on the merits, the default judgment against Marshalls must be vacated in the interest of justice.

MOTION TO COMPEL ARBITRATION

Defendants have also moved for an order compelling arbitration. There are two other actions pending that involve the parties: (1) an action in Missouri state court (the Missouri state court action); and (2) an action in the United States District Court for the Eastern District of Missouri. In addition, Marshalls filed a demand for arbitration with the American Arbitration Association (AAA) dated November 4, 2013 (the AAA arbitration proceeding). In the arbitration clause relied upon by defendants, the parties: (1) agree that covered disputes will be resolved by neutral arbitrators appointed in accordance with AAA rules; and (2) consent to the non-exclusive jurisdiction of the courts of the state of Missouri or any federal court located in Missouri for any action to, among other things, compel arbitration. An order has been entered in the Missouri state court action granting a motion to stay arbitration, which has been appealed. In light of the fact that the arbitrability of the parties' dispute is currently being considered by another court, defendants' motion to compel arbitration is denied, without prejudice. Except for service of pleadings, which the court will direct to be promptly completed, all further proceedings in this action — including discovery — shall be stayed until: (1) the actions pending in the Missouri courts and the AAA arbitration proceeding are resolved; or (2) further order of the court.

Based on the foregoing, it is hereby

ORDERED, that the default judgment against Marshalls is hereby vacated, in the interest of justice, and the Tompkins County Clerk is directed to mark her records accordingly; and it is further

ORDERED, that the temporary restraining order contained in the order to show cause dated September 25, 2012 — which stayed enforcement of the judgment until further order of the court — is hereby terminated; and it is further [*13]

ORDERED, that based on assignment of the judgment dated July 31, 2012 and recorded on August 2, 2012 (Instr. No. 595245-001), and Lovelaces' appearance in this action (including submission of documents bearing a caption showing them as plaintiffs), Lovelaces are substituted as plaintiffs in this action and the caption is amended accordingly, as follows (see CPLR 1018, 1021):

STATE OF NEW YORK

SUPREME COURT:COUNTY OF TOMPKINS

WAYNE LOVELACE and JUDY LOVELACE,

As Assignees of Chemung Canal Trust Company,

Plaintiffs,

v.Index No. 2011-0353

RJI No. 2011-0320-X

RPM ECOSYSTEMS ITHACA, LLC,

RPM HOLDINGS, LLC, MARVIN G. MARSHALL

and PATRICIA J. MARSHALL,

Defendants.

and it is further

ORDERED, that Marshalls shall serve and file an answer within thirty days after the date of this decision and order; any reply thereto shall be filed and served within thirty days after service of an answer containing counterclaims; and it is further

ORDERED, that defendants' motion to compel arbitration is denied, without prejudice; and it is further

ORDERED, that, except for service of pleadings, which the court has directed to be promptly completed, all further proceedings in this action — including discovery — are stayed until: (1) the actions pending in the Missouri courts and the AAA arbitration proceeding are resolved; or (2) further order of the court.

This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.

Dated: March 17, 2014

Cortland, New York

_______________________________ [*14]

ENTERHON. PHILLIP R. RUMSEY

Supreme Court Justice

The following documents were filed with the Clerk of the County of Tompkins:

-Decision and Order dated February 20, 2013, and the documents referenced therein.

-Decision and Order dated September 4, 2013, and the documents referenced therein.

-Order to show cause dated November 25, 2013.

-Affidavit of Marvin G. Marshall, sworn to November 22, 2013.

-Unsworn "Affidavit" of Anthony N. Elia, III, Esq., dated November 22, 2013, with Exhibits A — K.

-Affidavit of Edward Y. Crossmore, sworn to December 10, 2013, with Exhibits A — C.

-Reply affidavit of Michael Clithero, sworn to December 16, 2013, with Exhibit A.

-Reply affidavit of Marvin G. Marshall, sworn to December 17, 2013, with Exhibit A.

-Letter from Edward Y. Crossmore, Esq. to the court dated January 22, 2014, with enclosure.

-Affidavit of Michael A. Clithero, sworn to February 3, 2014, with Exhibits A — B.

.

-Letter from Adam R. Schaye to the court dated February 28, 2014.

-Original Decision and Order dated March 17, 2014.