The following papers read on this motion: Notice of Motion and Affidavits X Memorandum of Law in Support of Motion X Affirmation in Opposition X Reply Affirmation X Reply Memorandum of Law X Motion by the defendant, Kingswood Properties, LLC, for an order pursuant to CPLR §317 or 5015(a)(1), vacating this Court’s order dated November 3, 2016 and the subsequent judgment dated December 3, 2018. The plaintiff submits opposition. The defendant submits a reply memorandum of law. The plaintiff initiated the instant action to recover for personal injuries sustained on October 20, 2012 when she tripped and fell in the bagel store owned by the defendant. It is undisputed that the plaintiff attempted service upon the defendant’s business address listed with the Secretary of State. This address was no longer accurate at the time of service, but the defendant failed to timely change the address listed with the Secretary of State, and the Summons and Complaint in the instant action were returned as “undeliverable.” CPLR 5015(a) provides that the court which rendered a judgment or order may relieve a party from it upon the ground of excusable default. The determination of what constitutes a reasonable excuse lies within the court’s discretion (see Chen v. R & K 51 Realty, Inc., 148 A.D.3d 689). CPLR §317 provides, in pertinent party, that “[a] person served with a summons other than by personal delivery to him or to his agent for service designated under Rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of the entry of judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.” In support of its motion, the defendant submits, inter alia, a certified letter from the State of New York Department of State indicating that the attempted mailing was returned as undeliverable. The defendant also submits the affidavit of managing member Charles Serota who admits that the defendant failed to timely update its address but states that the Summons and Complaint were never personally delivered to the defendant. Mr. Serota avers that the defendant first received knowledge of the judgment on April 6, 2020, when it was informed that its account was frozen, and immediately moved to vacate. The defendant additionally describes potentially meritorious defenses to the instant action. In opposition, the plaintiff argues that the judgment should not be vacated because the defendant’s failure to receive service was an error of its own making. However, contrary to the plaintiff’s contentions, it is irrelevant under CPLR §317 that the defendant failed to notify the Secretary of State of its change of address (see Celifarco v. Command Bus Co., 107 A.D.2d 785, citing H.K.A. Realty Co. v. United Steel & Strip Corp., 88 A.D.2d 612). The plaintiff additionally points to the transcript from the inquest held on May 1, 2018 wherein counsel states that “multiple letters” were sent to “varying addresses,” but no proof of such notice is attached to their opposition papers. In light of the foregoing, it is hereby ORDERED that the defendant’s motion to vacate is granted, and it is further ORDERED that the parties are hereby directed to appear for a Preliminary Conference which shall be held at the Preliminary Conference part located at the Nassau County Supreme Court on the 3rd day of September, 2020, at 9:30 A.M. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the defendants. Dated: July 13, 2020
