Judgments - Default Judgment - Vacatur - Deliberate Attempt to Avoid Notice - Failure to Update Address with Secretary of State

Judgments - Default Judgment - Vacatur - Action for Work-Related Injuries - Meritorious Defense

Process - Service on Secretary of State - Effect of Process Not Reaching Defendant

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered May 23, 2024, which, to the extent appealed from as limited by the briefs, granted the motions of BUFNY II Associates, L.P. (BUFNY) and South Bronx Overall Economic Development Corporation doing business as SoBro (SoBro) to vacate a January 5, 2023 default judgment, together with a January 7, 2015 default order, entered against them and denied BUFNY's motion to dismiss the complaint as against it for lack of personal jurisdiction, unanimously affirmed, without costs.

The court providently exercised its discretion in granting defendants' motions under CPLR 317. Defendants established that they did not receive actual notice of process in time to defend this action by submitting the affidavit of SoBro's president.

Contrary to plaintiffs' arguments, it does not appear that either defendant deliberately attempted to avoid notice of this action. "[I]t cannot be inferred solely from the failure to update [a] defendant's address with the Secretary of State that [the] defendant was deliberately avoiding receiving notice" (Gomez v Karyes Realty Corp., 211 AD3d 576, 577 [1st Dept 2022]).

Defendants also both set forth facts sufficient to make a prima facie showing of their meritorious defenses (see Martinez v Urban Renaissance Collaboration L.P., 227 AD3d 475, 476 [1st Dept 2024]). SoBro showed, through the affidavit of its president and the contract between BUFNY and plaintiffs' decedent, Ebrima Jallow's employer, that SoBro was not an owner, general contractor, or statutory agent of the property where Jallow was working when he fell on a staircase (see Santos v Condo 124 LLC, 161 AD3d 650, 653 [1st Dept 2018]).

BUFNY made a prima facie showing as to the Labor Law § 200 and common-law negligence claims in that the contract gave Jallow's employer responsibility for the means and methods of the work. BUFNY also showed a meritorious defense to the Labor Law § 240 (1) claim in that it may be found that Jallow fell down a permanent staircase that is outside the coverage of the statute (see Griffin v New York City Tr. Auth., 16 AD3d 202, 203 [1st Dept 2005]). Furthermore, BUFNY showed a meritorious defense to the Labor Law § 241 (6) claim because the complaint does not identify any specific Industrial Code provision that was violated (see Reilly v Newireen Assoc., 303 AD2d 214, 218 [1st Dept 2003], lv denied 100 NY2d 508 [2003]).

The court properly denied BUFNY's CPLR 3211 (a) (8) motion to dismiss the complaint. Plaintiffs made service via Partnership Law § 121-109 (a). Jurisdiction was obtained by service of process on the Secretary of State, "irrespective of whether the process ever actually reached" BUFNY (Shanker v 119 E. 30th, Ltd., 63 AD3d 553, 554 [1st Dept 2009]). BUFNY's "right of due process was not violated since it was afforded an opportunity to vacate the default upon the showing of a meritorious defense" (Micarelli v Regal Apparel, 52 AD2d 524, 524 [1st Dept 1976]).

We have considered [*2]the remaining contentions and find them unavailing. Concur—Webber, J.P., Friedman, Gesmer, Rosado, Michael, JJ.