Barillari v. 511 Main Street Corp.

216 A.D.2d 859, 629 N.Y.S.2d 365, 1995 N.Y. App. Div. LEXIS 7162

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1995
• Status: Published

Opinion

Order unanimously reversed on the law without costs and cross motion granted. Memorandum: Supreme Court should have granted the cross motion of 511 Main Street Corp. (defendant) for an order extending the time to serve the proposed answer with counterclaims. Plaintiffs commenced this foreclosure action by serving the Secretary of State pursuant to Business Corporation Law § 306. The Secretary of State mailed a copy of the summons and complaint to the address of defendant’s former attorneys, who had been designated as defendant’s agent for the service of process. That address had not been a valid address for some time, and the mailing was returned to the Secretary of State with the notation "address not known.” Defendant established that it was unaware of this action until it received the statutory notice required by CPLR 3215 (g) (4), that its failure to advise the Secretary of State of its current address was not deliberate, and that it promptly served an answer upon plaintiffs and moved for an order extending the time to answer. Those circumstances demonstrate a reasonable excuse for the default in answering (see, Sackman Mtge. Corp. v 111 W. 95th St. Realty Corp., 152 AD2d 463, 464; cf., Tonawanda Tank Transp. Serv. v Envirosure Mgt. Corp., 179 AD2d 1014; Zuppa v Bison Drywall & Insulation Co., 93 AD2d 997). Further, defendant demonstrated the existence of a meritorious defense. (Appeal from Order of Supreme Court, Erie County, Joslin, J.—Extend Time to Serve Answer.) Present—Denman, P. J., Green, Wesley, Doerr and Balio, JJ.