Papers Numbered Defendant’s Affirmation in Support of Defendant’s Motion to Vacate Judgment, Exhibits Annexed 1 Plaintiff’s Affirmation in Opposition, Exhibits Annexed 2 Defendant’s Reply Affirmation in Opposition 3 DECISION AND ORDER Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows: PROCEDURAL HISTORY Plaintiff, Austin Wellness RX, Inc. (hereinafter, “Plaintiff”), as assignee of Willey Swinney (hereinafter, “assignor”), commenced this action against the Defendant, Dairyland Insurance Company (hereinafter, “Defendant”) to recover assigned first-party no fault benefits for medical treatment provided to assignor as a result of a motor vehicle accident that occurred on January 18, 2020. On or about September 30, 2021, Defendant received a default judgment on this claim. Defendant purports that it never received a summons or complaint. However, Plaintiff claims to have served a summons and complaint on Defendant’s authorized government agent, the Secretary of State, in Albany, New York on April 2, 2021. Defendant now moves the Court to vacate the default judgment pursuant to CPLR §5015 and restore the case to the trial calendar, claiming that it has a reasonable excuse in that it had not received the summons and complaint and that it has a potentially meritorious defense in that PIP benefits are not applicable and the policy was in fact exhausted. Plaintiff opposes the motion. DISCUSSION Defendant’s motion to vacate the judgment and restore the case to the trial calendar is hereby denied. Pursuant to CPLR §5015(a)(1), upon a motion, the court which rendered a judgment may relieve a party from it where there is excusable default. A request to vacate a default judgment must show the reason for the nonappearance and a meritorious defense that would justify re-opening the default. Yarbough v. Franco, 95 N.Y.2d 342, 347 (2000); Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650 (1983); Rekhtman v. Clarendon Holding Co., 165 A.D.3d 856, 857 (2d. Dep’t 2018). Defendant Did Not Have a Reasonable Excuse for Failing to Answer or Appear on the Claim Defendant argues that it has a reasonable excuse for failing to answer or appear on the claim because it never received the summons and complaint from Plaintiff. Plaintiff argues that by serving process on April 2, 2021 on Defendant’s authorized government agent, the Secretary of State, at 99 Washington Avenue, Albany, New York, the Defendant was in fact served and simply failed to answer or appear. In support of its argument, Plaintiff attaches Exhibit A, an affidavit of the process server indicating that the summons and complaint was served on Defendant’s authorized agent, the Secretary of State, located at 99 Washington Avenue, Albany, New York on April 2, 2021. Notably, this affidavit is signed on June 29, 2021, several months after the purported service of process. Although peculiar, this in no way invalidates the affidavit of service. Defendant, in support of its position, attaches Exhibit B, including an affidavit of its Senior Claims Specialist that handle claims and has personal knowledge of this matter. The affidavit indicates that at no time did the Defendant ever receive the summons and complaint from its authorized agent. An unsubstantiated excuse of failing to receive service is insufficient to overcome the presumption of proper service that is established by an affidavit of service. Ultimate One Distrib, Corp. v. 2900 Stillwell Ave., LLC, 140 A.D.3d 1054 (2d. Dep’t 2016); Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D. 893, 894 (2d. Dep’t 2006). In fact, a claim of failing to receive a copy of a summons and complaint from the Secretary of State due to a change of address is the party’s own fault as it failed to keep the Secretary of State apprised of its current address to forward process. Sussman v. Jo-Sta Realty Corp., 99 A.D.3d 787 (2d. Dep’t 2012) quoting Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D. 893 (2d. Dep’t 2006). Ultimately, the determination of the reasonableness of the excuse for a default lies within the discretion of the court that may consider a variety of factors such as the extent of the delay, prejudice to the opposing party, willfulness, and the strong public policy favoring resolving cases on the merits. Suede v. Suede, 124 A.D.3d 869, 870 (2d. Dep’t 2015); Harcztark v. Drive Variety, Inc., 21 A.D.3d 876-877 (2d. Dep’t 2005). Here, Defendant does not deny that the Secretary of State is Defendant’s authorized agent for accepting service nor does it deny that Defendant’s authorized agent ever received the summons and complaint. Defendant fails to provide any evidence that the Secretary of State has a different address or even any address on file for forwarding process. Defendant simply claims that it never received the summons and complaint and provides its current Wisconsin address. Considering all of the factors and surrounding circumstances, including the strong rebuttable presumption of the affidavit of service, the Court believes that Defendant has not met its burden of offering a reasonable excuse for failing to answer or appear on the claim. Conclusion As the Court finds that Defendant has not met its burden of providing a reasonable excuse for failing to answer or appear on the claim, determining whether Defendant had a potentially meritorious defense is moot. Based on the foregoing, Defendant’s motion to vacate the judgment and restore the case to the trial calendar is denied in its entirety. Dated: April 6, 2022
