Alecki v Tech Park Owner, LLC

Supreme Court, Monroe County

Decided on February 27, 2025

Index No. 2019007976

Erin S. Skinner, J.

Plaintiff commenced the instant action on August 22, 2019, to recover damages for personal injuries she sustained at premises owned, possessed, leased, managed, or operated by defendants Tech Park Owner, LLC (defendant), Tryad Group, LLC, and Tryad Group Management, LLC. On August 27, 2019, plaintiff served defendant pursuant to Limited Liability Company Law § 303 (a) by delivering two copies of the summons and complaint to the Secretary of State. Defendant failed to appear or answer the complaint, and on August 20, 2020, plaintiff moved for leave to enter a default judgment against defendant and for an inquest on the issue of damages. In an order entered October 22, 2020, Supreme Court granted plaintiff's unopposed motion and directed an inquest on the issue of damages. On July 26, 2024, a judgment was entered in favor of plaintiff and against defendant in the principal sum of $423,520.

Defendant now moves pursuant to CPLR 5015 to vacate the default order and, pursuant to CPLR 3211 (a) (8), to dismiss the complaint. Upon consideration of NYSCEF Doc. Nos. 29-32 and 34-35, defendant's motion to vacate the default order and dismiss the complaint is denied.

Although defendant did not specify any particular subdivision of CPLR 5015 as a ground for its motion, the Court concludes based upon the arguments made in support of the motion that defendant is seeking vacatur pursuant to CPLR 5015 (a) (1) or (4). "When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015 (a) (1)" (Rockman v Nassau County Sheriff's Dept., 224 AD3d 758, 759 [2d Dept 2024]).

"The failure to serve process in an action leaves the court without personal jurisdiction [*2]over the defendant, and all subsequent proceedings are thereby rendered null and void" (Rockman v Nassau County Sheriff's Dept., 224 AD3d 758, 759 [2d Dept 2024] [internal quotation marks omitted]). Service of process upon a limited liability company may be made by "[p]ersonally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with he statutory fee" (Limited Liability Company Law § 303 [a]). "Service of such process . . . shall be complete when the secretary of state is so served" (id.; see Paez v 1610 St. Nicholas Ave. L.P., 103 AD3d 553, 553-554 [1st Dept 2013]). Here, plaintiff submitted an affidavit of service establishing that two copies of the summons and complaint were delivered upon the Secretary of State on August 27, 2019. In support of its motion, defendant contends that it did not receive the summons and complaint from the Secretary of State; however, the "mere denial of receipt of the summons and complaint does not rebut the presumption of proper service through the Secretary of State as attested in the affidavits of service" (1KB & MS, LLC v Happy Living Constr., LLC, 228 AD3d 604, 605-606 [2d Dept 2024]; see Rockman, 224 AD3d at 759; Trini Realty Corp. v Fulton Ctr., LLC, 53 AD3d 479, 480 [2d Dept 2008]; see generally Fusion Funding v Loftti Inc. [Appeal No. 1], 216 AD3d 1416, 1417 [4th Dept 2023]). It is worth noting that defendant acknowledges that it received the notice of entry of the judgment, which was mailed to defendant at the same address registered with the Secretary of State (cf. L&W Supply Corp. v Built-Rite Drywall Corp., 220 AD3d 1205, 1206 [4th Dept 2023] [holding that the defendant had overcome the presumption of proper service "by submitting uncontradicted evidence that the address listed in the affidavit of service (did) not exist"]).

The cases cited to by defendant are distinguishable. In Ceder Run Homeowners' Assn., Inc. v Adirondack Dev. Group, LLC, the First Department held that the defendant's motion to dismiss for lack of personal jurisdiction should have been granted where the "plaintiffs failed to submit an affidavit of service or any other proof that would satisfy their burden of demonstrating that they acquired personal jurisdiction over defendant by, among other things, complying with Limited Liability Company Law § 303 (a)" (173 AD3d 1330, 1330 [3d Dept 2019]). In Chan v Onyx Capital, LLC, the defendant was a foreign corporation, which was subject to service pursuant to Limited Liability Company Law § 304, which requires service upon the Secretary of State as well as "direct notice of . . . delivery of the process to the Secretary of State" (156 AD3d 1361, 1362 [4th Dept 2017])—a requirement Limited Liability Company Law § 303 lacks.

Nor does the Court find that defendant has established entitlement to vacate the default order pursuant to CPLR 5015 (a) (1), which requires a party seeking to vacate an order on the ground of excusable default to "offer a reasonable excuse for its default and a meritorious defense to the action" (Wells Fargo Bank, N.A. v Dysinger, 149 AD3d 1551, 1552 [4th Dept 2017]; see Clearfun Solutions LLC v Tomassetti, 224 AD3d 1387, 1387 [4th Dept 2024]). Defendant's mere denial of receipt of the summons and complaint, without more, is insufficient to demonstrate a reasonable excuse pursuant to CPLR 5015 (a) (1) (see Fusion Funding, 216 AD3d at 1417; Andrews v Wartburg Rec., LLC, 203 AD3d 1000, 1001 [2d Dept 2022]; Hyman v 400 W. 152nd St. Hous. Dev. Fund Corp., 159 AD3d 606, 607 [1st Dept 2018]; Evans v City of Mt. Vernon, 163 AD3d 770, 772 [2d Dept 2018]).

Defendant's failure to provide a reasonable excuse for its default renders it unnecessary to consider whether it has a potentially meritorious defense to the action (see Butchello v Terhaar, 176 AD3d 1579, 1581 [4th Dept 2019]; Hyman, 159 AD3d at 607; Wells Fargo Bank, N.A., 149 [*3]AD3d at 1552). In any event, defendant failed to offer any evidence that it has a potentially meritorious defense, which precludes defendant from obtaining relief pursuant to CPLR 5015 (a) (1) (see Borohov v Queens Fresh Meadows, LLC, 225 581, 583 [2d Dept 2024]).

As such, the Court finds that vacatur pursuant to either CPLR 5015 (a) (1) or (4) is inappropriate and it therefore DENIES defendant's motion.

This constitutes the decision and order of the Court.

DATE: February 27, 2025

Hon. Erin S. Skinner

Supreme Court Justice