J & S Construction of NY, Inc. v. 321 Bowery LLC

Appellate Division of the Supreme Court of New York

J & S Construction of NY, Inc. v. 321 Bowery LLC

39 A.D.3d 391, 835 N.Y.S.2d 65

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 2007

StatusPublished

Cited by6 cases

This text of 39 A.D.3d 391 (J & S Construction of NY, Inc. v. 321 Bowery LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

J & S Construction of NY, Inc. v. 321 Bowery LLC, 39 A.D.3d 391, 835 N.Y.S.2d 65 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered February 14, 2006, which denied the motion of defendants Commercial Facades, also known as Commercial Facade Incorporated, and Miller Construction Co., Inc. to vacate an order of default, unanimously affirmed, without costs.

Appellants claim, as a reasonable excuse for their nonappearance, that they never received any copy of the process in the action because their address on file with the Secretary of State was obsolete. However, the failure to file a change of address with the Secretary of State generally is not a reasonable excuse under CPLR 5015 (a) (1) (Crespo v A.D.A. Mgt., 292 AD2d 5 [2002]). While such a failure does not constitute a per se barrier to vacatur, and some flexibility may be allowed by the courts (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]), here flexibility is not warranted. At least three years passed during which the appellants’ address on file with the Secretary of State was not updated, and appellants’ principal, while denying that he had received the default order, [392]*392acknowledged that it had been mailed to his home address (see KPG Inc. v Salinas Group Ltd,., 11 AD3d 338 [2004]). Concur— Andrias, J.P., Marlow, Sullivan, Gonzalez and Kavanagh, JJ.

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Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered February 14, 2006, which denied the motion of defendants Commercial Facades, also known as Commercial Facade Incorporated, and Miller Construction Co., Inc. to vacate an order of default, unanimously affirmed, without costs.

Appellants claim, as a reasonable excuse for their nonappearance, that they never received any copy of the process in the action because their address on file with the Secretary of State was obsolete. However, the failure to file a change of address with the Secretary of State generally is not a reasonable excuse under CPLR 5015 (a) (1) (Crespo v A.D.A. Mgt., 292 AD2d 5 [2002]). While such a failure does not constitute a per se barrier to vacatur, and some flexibility may be allowed by the courts (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]), here flexibility is not warranted. At least three years passed during which the appellants’ address on file with the Secretary of State was not updated, and appellants’ principal, while denying that he had received the default order, [392]*392acknowledged that it had been mailed to his home address (see KPG Inc. v Salinas Group Ltd,., 11 AD3d 338 [2004]). Concur— Andrias, J.P., Marlow, Sullivan, Gonzalez and Kavanagh, JJ.

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Bluebook (online)

39 A.D.3d 391, 835 N.Y.S.2d 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-s-construction-of-ny-inc-v-321-bowery-llc-nyappdiv-2007.

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