Cotag S.A.R.L. v. Khalifa

124 A.D.3d 465, 1 N.Y.S.3d 88

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 2015
• Docket: 652240/10 13951A 13951
• Status: Published

Opinion

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 18, 2013, awarding plaintiff the total amount of $476,119.57, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 15, 2013, which denied defendant Karim Ben Khalifa’s (defendant) motion to vacate his default, adopted the report of the special referee, and directed the Clerk of the Court to enter judgment in plaintiff’s favor against defendants, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant contends that his default should have been vacated because he was not properly served with the summons and complaint. However, he completely fails to address the August 6, 2012 order which — as a result of his failure to comply with a June 12, 2012 discovery order — deemed his address as of the date of service to be a specific address in Manhattan. Under those circumstances, service on the concierge at that address was proper (see generally Cowan, Liebowitz & Latman v New York Turkey Corp., 111 AD2d 93 [1st Dept 1985]).

The special referee’s findings were supported by the record; hence, the IAS court properly confirmed the special referee’s report (see generally Freedman v Freedman, 211 AD2d 580 [1st Dept 1995]).

Defendant’s remaining arguments (e.g., that the complaint should be dismissed pursuant to CPLR 3211 [a] [1] and [7], when defendants never made such a motion below) are not properly before us on this appeal, or improperly rely on “documents dehors the record” (Sunrise Capital Partners Mgt. LLC v Glattstein, 115 AD3d 602, 602 [1st Dept 2014]).

Concur — Mazzarelli, J.E, Sweeny, Andrias, Moskowitz and Richter, JJ.