Adria Tile, Inc. v. Third Park Avenue Building Co., L.P.
(Supreme Court of the State of New York, Westchester County 6/27/2013)
We represented: Third Park Avenue Building Co
Hon. William J. Giacomo, J.S.C.
DECISION and ORDER
Factual and Procedural Background
Plaintiff commenced this breach of contract action seeking payment for renovation services rendered to defendant. Plaintiff served defendant by serving a copy of the summons and complaint upon the Secretary of State pursuant to Partnership Law § 121-109(A). Defendant neither answered nor appeared in the action.
On December 4, 2012, plaintiff entered a default judgment against defendant in the amount of $107,042.50. Defendant was served with Marshall's Notice on January 2, 2013.
Defendant now moves to vacate its default arguing that it did not receive a copy of the summons and complaint from the Secretary of State. Further, defendant argues that by plaintiff's own admission it did not complete the renovation work contracted for and is not entitled to the full contract price. Notably, the contract was for bathroom renovations to floors 25, 29, 31 and 37 of defendant's building. However, plaintiff acknowledges that it only performed renovation work on the 25th and 29th floors.
Discussion
Pursuant to CPLR 5015(a)(1), that provision entitles a defendant to relief from a default judgment on the ground of excusable neglect if the motion is made within one year from the date that defendant is served with a copy of the judgment. Relief upon this ground requires a showing of "both a reasonable excuse for [the defendant's] default and a meritorious defense ". (Hageman v. Home Depot U.S.A., Inc., 25 A.D.3d 760, 761, 808 N.Y.S.2d 763 [2nd Dept 2006]).
Here, defendant has demonstrated that it did not receive the summons and complaint from the Secretary of State and that it has a meritorious defense. Moreover, in view of the public policy favoring resolution of cases on the merits, defendant's default should be vacated (see Robles v. Grace Episcopal Church, 192 A.D.2d 515, 595 N.Y.S.2d 824 [2nd Dept 1993]).
Based on the foregoing, defendant's motion to vacate its default is GRANTED. The defendant shall serve its answer within 30 days of the date of this order and the parties are directed to appear in the Compliance Part on July 29, 2013, at 9:30 a.m. room 800 for further proceedings.
Dated: White Plains, New York
June 27, 2013