

State Farm Mut. Auto. Ins. Co. v Dr. Ibrahim Fatiha Chiropractic, P.C. (2017 NY Slip Op 01507)





State Farm Mut. Auto. Ins. Co. v Dr. Ibrahim Fatiha Chiropractic, P.C.


2017 NY Slip Op 01507


Decided on February 28, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 28, 2017

Renwick, J.P., Mazzarelli, Moskowitz, Kapnick, Webber, JJ.


3241N 20405/15E

[*1] State Farm Mutual Automobile	 Insurance Company, et al., Plaintiffs-Appellants,
vDr. Ibrahim Fatiha Chiropractic, P.C., Defendant-Respondent.


Freiberg, Peck, & Kang, LLP, Armonk (Yilo J. Kang of counsel), for appellants.
Sobel Law Offices P.C., Syosset (Svetlana Sobel of counsel), for respondent.

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 837 [1991]). Even were we to consider the document submitted by defendant's principal, it 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]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2017
CLERK


