The court affirmed the motion to dismiss the client’s claims.

In Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 590-91 [2d Dept 2023], the court affirmed the motion to dismiss the client’s claims, holding:

“On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference” (Angeli v Barket, 211 AD3d 896, 897 [2022]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849, 851-852 [2012]; see Nassau Operating Co., LLC v DeSimone, 206 AD3d 920, 925-926 [2022]).

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845 [2012]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716 [2022]). “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 847; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848 [citations omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v Silverstone, 215 AD3d 787, 789 [2023]; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506 [2020]). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211 [a] [5]; Reid v Reid, 198 AD3d 993, 994 [2021]; Shifer v Shifer, 165 AD3d 721, 723 [2018]).

Pursuant to Judiciary Law Section 487, an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages (see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762 [2021]). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]; see CPLR 3016 [b]; Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 787 [2021]). Here, the plaintiff’s allegations that the defendants hid true facts and acted to benefit themselves are conclusory and factually insufficient (see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d at 787; Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762).


Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

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On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7)…

In Alexim Holdings, LLC v McAuliffe, 2023 NY Slip Op 05581 [2d Dept Nov. 8, 2023], the court affirmed the dismissal of a client’s legal malpractice case, holding:

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 715, 169 N.Y.S.3d 90).

Here, the Supreme Court properly granted those branches of McAuliffe Law’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging legal malpractice, breach of contract, and breach of fiduciary duty insofar as asserted against it. The complaint failed to allege the existence of an attorney-client relationship, contractual relationship, or fiduciary relationship between the plaintiff and McAuliffe Law, which was not a party to the subject legal services agreement and did not even exist at the time of the misconduct alleged in the complaint. Thus, the complaint failed to state a cause of action sounding in, inter alia, legal malpractice or breach of fiduciary duty insofar as asserted against McAuliffe Law (see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813, 963 N.Y.S.2d 313).

The Supreme Court also properly granted those branches of the Tarbet defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging legal malpractice, breach of fiduciary duty, and breach of contract insofar as asserted against them. “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484 [internal quotation marks omitted]; see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 812, 963 N.Y.S.2d 313). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505, 131 N.Y.S.3d 89 [internal quotation marks omitted]). “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 847, 952 N.Y.S.2d 592; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90; Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 848, 952 N.Y.S.2d 592 [citations omitted]; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90).

Here, the complaint failed to adequately allege that the Tarbet defendants’ breach of their professional duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90; Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 848, 952 N.Y.S.2d 592; Wald v. Berwitz, 62 A.D.3d 786, 787, 880 N.Y.S.2d 293). The plaintiff’s allegations that, but for the Tarbet defendants’ alleged negligence, the plaintiff would have received a more favorable settlement offer or outcome in the underlying action were conclusory and speculative (see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89; Janker v. Silver, Forrester & Lesser, P.C., 135 A.D.3d 908, 910, 24 N.Y.S.3d 182). Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice insofar as asserted against the Tarbet defendants. Further, since the causes of action alleging breach of fiduciary duty and breach of contract insofar as asserted against the Tarbet defendants arose from the same operative facts as the legal malpractice cause of action and did not allege distinct damages, they were duplicative of the legal malpractice cause of action and thus, also subject to dismissal (see Cali v. Maio, 189 A.D.3d 1337, 1339, 134 N.Y.S.3d 806; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 813, 963 N.Y.S.2d 313).


Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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Court dealt with Judiciary Law Section 487.

In Guliyev v Banilov & Assoc., P.C., 198 NYS3d 400, 402-03 [2d Dept 2023], the court dealt with Judiciary Law Section 487. The court held:

“On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference” (Angeli v. Barket, 211 A.D.3d 896, 897, 180 N.Y.S.3d 564; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851–852, 955 N.Y.S.2d 109; see Nassau Operating Co., LLC v. DeSimone, 206 A.D.3d 920, 925–926, 171 N.Y.S.3d 528).

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 845, 952 N.Y.S.2d 592; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 716, 169 N.Y.S.3d 90). “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 847, 952 N.Y.S.2d 592; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 848, 952 N.Y.S.2d 592 [citations omitted]; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v. Silverstone, 215 A.D.3d 787, 789, 185 N.Y.S.3d 699; Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1506, 131 N.Y.S.3d 89). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211[a][5]; Reid v. Reid, 198 A.D.3d 993, 994, 157 N.Y.S.3d 52; Shifer v. Shifer, 165 A.D.3d 721, 723, 85 N.Y.S.3d 92).

Pursuant to Judiciary Law § 487, an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages (see Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d 760, 762, 142 N.Y.S.3d 170). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v. Perini & Hoerger, 65 A.D.3d 1106, 1108, 886 N.Y.S.2d 49; see Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d at 762, 142 N.Y.S.3d 170). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v. Stein Law Firm, P.C., 164 A.D.3d 635, 637, 82 N.Y.S.3d 91, affd 35 N.Y.3d 173, 126 N.Y.S.3d 50, 149 N.E.3d 888; see CPLR 3016[b]; Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d 785, 787, 160 N.Y.S.3d 67). Here, the plaintiff’s allegations that the defendants hid true facts and acted to benefit themselves are conclusory and factually insufficient (see Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d at 787, 160 N.Y.S.3d 67; Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d at 762, 142 N.Y.S.3d 170).


Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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Court should have accepted the plaintiff’s allegations in the complaint as true.

In Garanin v Hiatt, 219 AD3d 958, 959 [2d Dept 2023], the court held that the law firm’s motion to dismiss should have been denied since the court should have accepted the plaintiff’s allegations in the complaint as true. The court held:

In deciding a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Applying these principles here, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. “While the complaint does not allege an attorney-client relationship between the plaintiff[ ] and the defendants, it sets forth a claim which falls within ‘the narrow exception of fraud, collusion, malicious acts or other special circumstances’ under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” (Mr. San, LLC v. Zucker & Kwestel, LLP, 112 A.D.3d 796, 796–797, 977 N.Y.S.2d 328, quoting Ginsburg Dev. Cos., LLC v. Carbone, 85 A.D.3d 1110, 1112, 926 N.Y.S.2d 156; see Webster v. Sherman, 165 A.D.3d 738, 740, 85 N.Y.S.3d 457).

The Supreme Court further erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487. As relevant here, Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive … any party.” Here, accepting the plaintiff’s allegations as true and giving the plaintiff the benefit of every possible favorable inference, the amended complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487 (cf. Betz v. Blatt, 160 A.D.3d 696, 699, 74 N.Y.S.3d 75).


Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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Catch Me If You Can: The importance of an up-to-date address for Service of Process.

computer keyboard and smart phone with text on screen saying "register information"

The defendant corporation was served with the Summons and Complaint through the New York Secretary of State, as reflected in the affidavit of service. As reflected in the certificate of service from the NYS Secretary of State, the defendant was served by certified mail at its designated address for service of process. A letter with copies of the Summons and Complaint was mailed to the defendant’s address. Thereafter, the motion for a default judgment was filed with the court and a copy thereof was served upon the defendant. None of the letters were returned. Based upon the defendant’s default, the court entered the Default Judgment.

Motion to vacate Default Judgment

The defendant corporation brought an Order to Show Cause seeking to vacate its default in answering the Summons and Complaint. The motion, brought pursuant to CPLR 5015(a), claimed that the defendant had both a reasonable excuse for the defendant’s failure in defaulting in answering the action and a meritorious defense. Attached to the motion was the affidavit of the corporation’s principal, who stated his reasons why the defendant did not respond to the action; namely, he claimed that he never received the Summons and Complaint or any of the mailings sent by the attorney’s office. The plaintiff’s attorney retained Richard A. Klass, Esq., Your Court Street Lawyer, to oppose the Order to Show Cause and request that the Default Judgment remain intact and enforceable.

Service of process under Business Corporation Law Section 306

CPLR 311(a)(1) delineates the methods of service of process upon a corporation as follows: “upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law….”

The plaintiff used the method of service duly authorized by Business Corporation Law Section 306,[1] by having the Summons and Complaint served upon the NYS Secretary of State. The defendant could not challenge that service was made upon the NYS Secretary of State since the plaintiff was entitled to the well-established presumption of due service. See, Deutsche Bank Nat. Tr. Co. v Quinones, 114 AD3d 719, 719 [2d Dept 2014] (“A process server’s affidavit of service constitutes prima facie evidence of proper service (see Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543; Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254; Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984, 912 N.Y.S.2d 96).”)

The Second Department, in Wassertheil v Elburg, LLC, 94 AD3d 753, 753-54 [2d Dept 2012], enunciated the standard required to vacate a default based upon service of process upon the NYS Secretary of State:

To successfully oppose a motion for leave to enter a default judgment based on the failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for its delay and the existence of a potentially meritorious defense (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; 2261 Palmer Ave. Corp. v. Malick, 91 A.D.3d 853, 936 N.Y.S.2d 672; Kouzios v. Dery, 57 A.D.3d 949, 871 N.Y.S.2d 303; Baldwin v. Mateogarcia, 57 A.D.3d 594, 869 N.Y.S.2d 217). Here, the mere denial by Encore’s shareholder of service of the summons and the complaint was insufficient to rebut the presumption of proper service on the Secretary of State raised by the affidavit of service (see Business Corporation Law § 306 [b] [1]; Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081–1082, 923 N.Y.S.2d 572; Thas v. Dayrich Trading, Inc., 78 A.D.3d 1163, 1164, 913 N.Y.S.2d 269; May v. Hartsdale Manor Owners Corp., 73 A.D.3d 713, 900 N.Y.S.2d 359).

Based upon case law, a defendant’s mere denial of receipt of mail is insufficient. In his affidavit, the defendant’s principal surmised that he may not have received any notification from the Secretary of State as a result of the Governor’s Executive Orders concerning the pandemic pausing government services, and there could be a backlog. This was mere conjecture, and it was urged that the ‘pandemic excuse’ should be of no assistance to him. In addition to the failure to rebut the presumption of due service via the Secretary of State, there was no evidence to rebut the presumption of mailing from both the Secretary of State and the attorney’s office. See, Vita v Heller, 97 AD2d 464, 464 [2d Dept 1983] (“Service of papers by mail is deemed complete upon deposit of such papers in the mail and such manner of service creates a presumption of proper mailing to the addressee (CPLR 2103, subd. [b], par. 2; A & B Serv. Sta. v. State of New York, 50 A.D.2d 973, 376 N.Y.S.2d 656, mot. for lv. to app. den. 39 N.Y.2d 709, 386 N.Y.S.2d 1027, 352 N.E.2d 597). The burden then falls upon the addressee to present evidence sufficient to overcome the presumption and establish nonreceipt.”). Further, the denial of receipt of the Summons and Complaint from the Secretary of State was belied by the certificate of service.

Corporation must update its address with the Department of State

The defendant also stated that he had not lived at the mailing address of 1501 55th Street, Brooklyn NY (one of the mailing addresses designated by the corporation and to which additional mailings were made in this action) since 2008. However, the last two Biennial Statements filed by the corporation for the filing periods for 2009-2011 and 2011-2013 state the “Service of Process Address” at “1501 55th Street, Brooklyn NY 11228.” It was argued that the Court should also note that the 2013 Biennial Statement for the corporation is the LAST one filed with the Secretary of State’s office and its statement status is listed as “Past Due.”

In Cedeno v Wimbledon Bldg. Corp., 207 AD2d 297, 298 [1st Dept 1994], the court rejected the defendant’s claim that he vacated the address for service of process designated eight years earlier, holding:

Service was effected in person at the office of the Secretary of State, and by mail directed to defendant’s designated agent at an office location that counsel says he vacated eight years earlier. Defendant maintains that minimal diligence on plaintiff’s part would have led him to counsel’s correct address. But it is a corporation’s obligation to keep on file with the Secretary of State the current address of an agent to receive service of process (Cristo Bros. v. M. Cristo, Inc., 91 A.D.2d 807, 458 N.Y.S.2d 50), and failure to meet that obligation will not constitute reasonable excuse to vacate a default judgment (Conte Cadillac v. C.A.R.S. Purch. Serv., 126 A.D.2d 621, 622, 511 N.Y.S.2d 58). It is for this reason that service of process on a corporation is deemed complete when the Secretary of State is served, regardless of whether such process ultimately reaches the corporate defendant (Associated Imports v. Leon Amiel Publ., 168 A.D.2d 354, 562 N.Y.S.2d 678, lv. dismissed 77 N.Y.2d 873, 568 N.Y.S.2d 915, 571 N.E.2d 85).

In Crespo v A.D.A. Mgt., 292 AD2d 5, 9-10 [1st Dept 2002], the court held, “The failure of a corporate defendant to receive service of process due to breach of the obligation to keep a current address on file with the Secretary of State (see, Business Corporation Law § 306) does not constitute a reasonable excuse. (Lawrence v. Esplanade Gardens, 213 A.D.2d 216, 623 N.Y.S.2d 586; Cedeno v. Wimbledon Bldg. Corp., supra at 298, 615 N.Y.S.2d 40.)”

No need to address the Defendant’s purported meritorious defense

Regardless of whether the defendant would have had any defense to the action, it was argued that it could not present one now since there was no excuse for its default. In Mellon v Izmirligil, 88 AD3d 930, 931-32 [2d Dept 2011], the court held:

Since the defendant failed to demonstrate a reasonable excuse for his default, it is unnecessary to determine whether he demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643; HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890; Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d at 905, 866 N.Y.S.2d 357).

Based upon the arguments put forth in opposition, the court denied the Order to Show Cause and the Default Judgment was upheld.

— Richard A. Klass, Esq.


[1] (b)(1) Service of process on the secretary of state as agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such corporation shall be complete when the secretary of state is so served. The secretary of state shall promptly send one of such copies by certified mail, return receipt requested, to such corporation, at the post office address, on file in the department of state, specified for the purpose. If a domestic or authorized foreign corporation has no such address on file in the department of state, the secretary of state shall so mail such copy, in the case of a domestic corporation, in care of any director named in its certificate of incorporation at the director’s address stated therein or, in the case of an authorized foreign corporation, to such corporation at the address of its office within this state on file in the department.

Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2023 Richard A. Klass

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