Crespo v. A.D.A. Management3/12/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Plaintiffs appeal from an order of the Supreme Court, Bronx County (Joseph Giamboi, J.), entered January 18, 2001, which granted the motion of defendants Mandy Associates, LLC and Finkelstein-Morgan, R.E., Inc. to vacate their default.
In this personal injury action arising out of lead paint exposure at the apartment in which they resided, the injured plaintiff, an infant born on September 23, 1992, and her mother, who sues in both her representative and individual capacity, appeal from the grant of the motion of defendants Mandy Associates, LLC and Finkelstein-Morgan, R.E., Inc., the owner and managing agent, respectively, of the premises involved, to vacate their default in appearing or answering the complaint. Given that defendants offered neither a valid excuse for their default nor a showing of a meritorious defense, both of which, under well settled law, are required to justify such relief, the motion court's decision, for which no reasons were given, was an abuse of discretion.
Mandy Associates, then located at 670 White Plains Road in Scarsdale, New York, as was Finkelstein-Morgan, took title to the subject apartment building, located at 2585 Grand Concourse in the Bronx, in September 1996. Sometime before the commencement of this action in June 1999, both defendants moved to 111 Brook Street, Scarsdale, New York. After filing a summons and verified complaint with the Clerk of Bronx County on June 10, 1999, plaintiffs thereafter, on or about June 24, 1999, served a supplemental summons and amended verified complaint upon defendants by delivering the same, with the necessary filing fee, to the New York Secretary of State pursuant to Business Corporation Law §306(b) and Limited Liability Company Law §303.
Plaintiffs also personally served defendants, on or about June 30, 1999, pursuant to CPLR 311(a) [personal service on a corporation] and 311-a(a) [personal service on limited liability companies], by delivering the supplemental summons and amended verified complaint to a Marcos Cortez as "general agent" at defendants' new offices. According to plaintiffs' affidavit of service, Mr. Cortez accepted service on defendants' behalf at 111 (*3)Brook Avenue, Scarsdale, New York.
Subsequently, on or about August 9, 1999, plaintiffs sent each defendant, by certified mail, a letter advising them of the prior service of process upon them through the Secretary of State and by delivery to Mr. Cortez as their "general agent" and that unless an answer was received in ten days, plaintiffs would request a default judgment. The mailings also included a third copy of the supplemental summons and amended verified complaint. An affidavit of mailing as to each letter was executed on August 10, 1999. Plaintiffs received signed, certified mailing receipts acknowledging delivery of these letters on August 12, 1999.
On March 2, 2000, more than 20 days after the additional copy of the supplemental summons and amended verified complaint with notice had been mailed to defendants, as required by CPLR 3215(g)(4), plaintiffs moved for a default. The supporting papers included an affidavit of merits from the infant's mother, an affirmation reciting that service of the pleadings had been made pursuant to CPLR 311(a)(l) by delivery of the pleadings to the Secretary of State and affidavits of service attesting to such service. Supreme Court granted the motion by order entered June 9, 2000, a copy of which, with notice of entry, was served upon each defendant on or about June 30, 2000 by mail addressed to them at 111 Brook Avenue, Scarsdale, New York.
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