State Farm Mutual Automobile Insurance Co. v. Dr. Ibrahim Fatiha Chiropractic, P.C.

Appellate Division of the Supreme Court of New York

State Farm Mutual Automobile Insurance Co. v. Dr. Ibrahim Fatiha Chiropractic, P.C.

2017 NY Slip Op 1507, 147 A.D.3d 696, 48 N.Y.S.3d 133

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

DecidedFebruary 28, 2017

Docket3241N

StatusPublished

Cited by7 cases

This text of 2017 NY Slip Op 1507 (State Farm Mutual Automobile Insurance Co. v. Dr. Ibrahim Fatiha Chiropractic, P.C.) 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

State Farm Mutual Automobile Insurance Co. v. Dr. Ibrahim Fatiha Chiropractic, P.C., 2017 NY Slip Op 1507, 147 A.D.3d 696, 48 N.Y.S.3d 133 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered January 25, 2016, which denied plaintiffs’ motion for a default judgment, and granted defendant’s motion to compel plaintiffs to accept a late answer, unanimously reversed, on the law, without costs, plaintiffs’ motion granted, and defendant’s motion denied. The Clerk is directed to enter judgment declaring that, with respect to payments sought by defendant, there is no coverage for the claims identified in the complaint.

Contrary to the motion court, we find that defendant failed to demonstrate a reasonable excuse for its default in answering the complaint, service of which was complete when the Secretary of State was served (Business Corporation Law § 306; Associated Imports v Amiel Publ., 168 AD2d 354 [1st Dept 1990], appeal dismissed 77 NY2d 873 [1991]). Even were we to consider the document submitted by defendant’s principal, it *697 would not avail defendant. Neither the principal’s bare denial that he ever received notice of the lawsuit before receiving the motion for a default judgment nor defendant’s failure to keep current its address on file with the Secretary of State constitutes a reasonable excuse for defendant’s failure to timely answer (KPG Inc. v Salinas Group Ltd., 11 AD3d 338 [1st Dept 2004]; Associated Imports, 168 AD2d at 354).

Further, defendant acknowledges that the Bronx street address to which an additional copy of the summons and complaint was sent pursuant to CPLR 3215 (g) (4) (i) was the actual address of its practice and does not deny that it received the motion for a default judgment at this address. Any failure by plaintiffs to send the additional copy of the summons and complaint by first class mail as the statute directs is not fatal to their motion for a default judgment (Hamilton Pub. Relations v Scientivity, LLC, 129 AD3d 1025, 1026 [2d Dept 2015]; see also Crespo v A.D.A. Mgt., 292 AD2d 5, 10 [1st Dept 2002]).

Concur — Renwick, J.R, Mazzarelli, Moskowitz, Kapnick and Webber, JJ.

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Order, Supreme Court, Bronx County (Ruben Franco, J.), entered January 25, 2016, which denied plaintiffs’ motion for a default judgment, and granted defendant’s motion to compel plaintiffs to accept a late answer, unanimously reversed, on the law, without costs, plaintiffs’ motion granted, and defendant’s motion denied. The Clerk is directed to enter judgment declaring that, with respect to payments sought by defendant, there is no coverage for the claims identified in the complaint.

Contrary to the motion court, we find that defendant failed to demonstrate a reasonable excuse for its default in answering the complaint, service of which was complete when the Secretary of State was served (Business Corporation Law § 306; Associated Imports v Amiel Publ., 168 AD2d 354 [1st Dept 1990], appeal dismissed 77 NY2d 873 [1991]). Even were we to consider the document submitted by defendant’s principal, it *697 would not avail defendant. Neither the principal’s bare denial that he ever received notice of the lawsuit before receiving the motion for a default judgment nor defendant’s failure to keep current its address on file with the Secretary of State constitutes a reasonable excuse for defendant’s failure to timely answer (KPG Inc. v Salinas Group Ltd., 11 AD3d 338 [1st Dept 2004]; Associated Imports, 168 AD2d at 354).

Further, defendant acknowledges that the Bronx street address to which an additional copy of the summons and complaint was sent pursuant to CPLR 3215 (g) (4) (i) was the actual address of its practice and does not deny that it received the motion for a default judgment at this address. Any failure by plaintiffs to send the additional copy of the summons and complaint by first class mail as the statute directs is not fatal to their motion for a default judgment (Hamilton Pub. Relations v Scientivity, LLC, 129 AD3d 1025, 1026 [2d Dept 2015]; see also Crespo v A.D.A. Mgt., 292 AD2d 5, 10 [1st Dept 2002]).

Concur — Renwick, J.R, Mazzarelli, Moskowitz, Kapnick and Webber, JJ.

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Bluebook (online)

2017 NY Slip Op 1507, 147 A.D.3d 696, 48 N.Y.S.3d 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-mutual-automobile-insurance-co-v-dr-ibrahim-fatiha-nyappdiv-2017.

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