Puccini v Prisma Cargo Solutions, LLC 2016 NY Slip Op 30575(U) April 7, 2016 Supreme Court, New York County Docket Number: /2014 Judge: Manuel

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1 Puccini v Prisma Cargo Solutions, LLC 216 NY Slip Op 3575(U) April 7, 216 Supreme Court, Ne York County Docket Number: 15685/214 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 4/7/216 12:49 PM INDEX NO /214 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 4/7/216 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: MANUEL J. MENDEZ PART--:1:...:3:. Justice!SABELLA PUCCINI, INDEX NO /214 Plaintiff, MOTION DATE against- MOTION SEQ. NO 2 MOTION CAL. NO PRISMA CARGO SOLUTIONS, LLC, Defdant. The folloing papers, numbered 1 to_1q_ ere read on this motion to vacate a default judgmt. Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits PAPERS NUMBERED z <( (.!) z t:= ~ (.) -...J :::>...J.., u..... c J:... ~ u.. >...J...J :::> u.... (.) c.. <( (.) -... z... ::?! D Yes X No Upon a reading of the foregoing cited papers, it is ordered that this motion by Order to Sho Cause seeking vacatur of a default judgmt ith leave to file an anser to the complaint is granted. Defdant is a domestic limited liability company formed in February 21 in Ne York providing international moving services. (see Mot. Exh. C; see also Affidavit of Peimaneh Riahi attached to the instant motion). Plaintiff and defdant tered into a service agreemt for defdant to pack, ship, deliver, and unpack plaintiff's personal items for her move from Pasada, California to Milan, Italy in July 213 for the price of $11,5.. (see Complaint attached as Mot. Exh. H P 1; see also service agreemt attached as Mot. Exh. I). Per the service agreemt, plaintiff purchased "full coverage" insurance to cover for loss and/or damage for the items being shipped for an additional cost of $3,9.6, hich as based upon the 2% estimated value of plaintiff's items. In order to purchase this additional coverage through defdant, plaintiff provided a list of the items being shipped and their total estimated value hich as estimated at 15, euros. (see Complaint- Mot. Exh. H P 2). Plaintiff alleges that upon receipt and unpacking of her personal belongings in Italy, on September 1, 213, several items ere discovered to be brok and damaged. (Id. at P 3). Plaintiff further claims that at this time it as also discovered that several items had not be packed properly by Defdant prior to shipping. (Id.) Plaintiff th "filed a claim ith the 'full coverage insurance' carrier idtified by Defdant." (Id.) Plaintiff's claim as died by the insurance carrier on February 6, 214. (Id.) Plaintiff commced this action by Summons and Complaint dated July 1, 214 alleging ( 1) breach of contract for defdant's failure to obtain the promised full coverage insurance, failure to use due care in packing, shipping and handling, and failure to use proper ood crating in the packing of plaintiff's items; (2) fraud for defdant's failure to obtain full coverage insurance for plaintiff's items after represting that full of 4

3 [* 2] coverage ould be in place after plaintiff paid for said coverage; (3) negligce; and (4) unjust richmt of defdant in taking plaintiff's money for the full insurance coverage but failing to provide such coverage. (see Complaint- Mot. Exh. H). Defdant did not appear, anser, or plead in this action, and on May 11, 215 plaintiff mailed to defdant a copy of plaintiff's Notice of Motion for Default. (see Sal Meli Aff. In Opp. P 5 and Exh. 8 attached thereto). On May 12, 215, plaintiff also mailed a copy of the Request for Judicial Intervtion form to be filed ith the Court to defdant. (Id. and Exh. 9 attached thereto). This Court granted plaintiff's default motion on May 29, 215. (see Exh. 1 attached to Sal Meli Aff. In Opp.) Plaintiff th mailed a copy of this Court's Order ith Notice of Entry granting the default motion to defdant on June 18, 215 (Id. PP 5-6 and Exh. 1 attached thereto). The matter as set for an inquest hearing and according to defdant it asn't until receiving notice from the Court that an inquest as being held that defdant became aare of the instant action. (see Riahi Aff. attached to the Mot. and copy of notice of the inquest hearing attached thereto as Exh. 8). Defdant moved by Order to Sho Cause in November of 215 seeking to: (1) vacate, pursuant to CPLR 317, this Court's May 29, 215 Order granting a judgmt on default, (2) stay the inquest for damages that as to be held on November 12, 215, and; (3) grant defdant leave to serve an anser. The inquest as stayed and Oral argumt as held on the motion on February 1 7, 216. Defdant claims that it as unaare of the instant action because the Summons and Complaint as never received through either the Secretary of State nor through plaintiff's separate mailing pursuant to CPLR Defdant contds that its address on file ith the Secretary of State is 555 8th Avue, Suite 111, Ne York, Ne York, hoever, defdant moved in late 212 from Suite 111 to Suite 81 and failed to notify the Secretary of State of the Suite change. (see Aff. In Supp). Defdant claims that its failure to update the Suite number ith the Secretary of State as "inadvertt and due to lack of knoledge of the importance of doing so." (Id.; see also Riahi Aff). Defdant also alleges that none of the mailings that plaintiff refers to ere received by defdant because said mailings ere all st to defdant's old Suite number. (see Riahi Aff. P 3). Further, defdant maintains that though it moved only three floors don ithin the same building, delivery of mail is oft an issue if the mail is not addressed properly ith the correct Suite number. (see Aff. In Supp. and Riahi Aff.) The mailman ill deliver the mail to the Suite number specified on the velope no matter hat company it is for. (see Riahi Aff. PP 2-3). Defdant also contds that plaintiff as aare of the correct mailing address ith the updated Suite number of #81 as this ne Suite number as listed in "several s and at least one invoice" to plaintiff. (Riahi Aff. P 3). 2 of 4

4 [* 3] In addition to claiming that notice of the summons and complaint as not received in time to defd, defdant also claims it has a meritorious defse. Defdant maintains that it is not liable to plaintiff for any of the damages claimed in her complaint based on the terms and conditions of the service agreemt, and the fact that plaintiff accepted the sum of $7 in paymt for the damages. (Id. PP 3-7). Plaintiff, in opposition, argues that defdant had notice of the instant action for several reasons. Plaintiff served the summons and complaint by serving the Secretary of State of the State of Ne York on July 16, 214. (see Affidavit of Service Mot. Exh. P). Additionally, plaintiff mailed a copy of the complaint to defdant pursuant to CPLR (see Aff. of Service attached as Exh. 7 to Aft. In Opp). Plaintiff's opposition papers provide, and the exhibits closed thereith confirm, that all of the mailings to defdant ere made to the defdant at its old Suite number. (see Plaintiff's Opposition papers). An affidavit of service from a process server stating that "defdant as served through the Secretary of State" raises a rebuttable presumption of effective service upon defdant. Gonzalez v. The City of Ne York, et al., 16 A.D.3d 436 [1st Dept. 213]. Providing only conclusory affidavits dying receipt of the pleadings, ithout more, is "insufficit to rebut the presumption of service created by the process server's affidavit." Id., citing Grinshpun v. Borokhovich, 1 A.D.3d 551, 954 N.Y.S.2d 52 [1st Dept. 212]. Hoever, vacatur may be granted pursuant to CPLR 317 upon a shoing that defdant lacked actual notice of the action in time to defd and that it had a meritorious defse (Diggs v. Kar Manor Assocs., LLC, 117 A.D.3d 41, 985 N.Y.S.2d 23 [1st Dept., 214], citing to Olivaria v. Lin & Son Realty Corp., 84 AD3d 423, 922 NYS2d 337 [1st Dept 211]; Arabesque Recs. LLC v. Capacity LLC, 45 AD3d 44, 846 NYS2d 43 [1st Dept 27]). CPLR 317 states that "[a] person served ith a summons other than by personal delivery to him or to his agt for service designated under rule 318, ithin or ithout the state, ho does not appear may be alloed to defd the action ithin one year after he obtains knoledge of try of the judgmt, but in no evt more than five years after such try, upon a finding of the court that he did not personally receive notice of the summons in time to defd and has a meritorious defse." Defdant has provided the Court ith a reasonable excuse for its default and a meritorious defse. (see CPLR 515(a)(1 )). Accordingly, it is ORDERED that defdant's motion by Order to Sho Cause vacating a default judgmt dated May 29, 215, is granted, and it is further, ORDERED that the default judgmt dated May 29, 215, is vacated, and it is further, 3 of 4

5 [* 4] ORDERED, that defdant serve a copy of this Order ith Notice of Entry upon plaintiff ithin 1 days from the date of try of this Order, and it is further, ORDERED, that, defdant is granted leave to anser the complaint ithin 2 days from the date of service of a copy of this Order ith Notice of Entry, and it is further, ORDERED, that defdant serve a copy of this Order ith Notice of Entry upon the Geral Clerk's Office, the intake clerk for trial support ho is located in the Geral Clerk's Office (Room 119) and the County Clerk's Office (Room 1418) pursuant to e-filing protocol ho are directed to mark their records accordingly. Enter: Dated: April 7, 216 Check one: D FINAL DISPOSITION X ~ENDEZ J.s.cMANUEL J. MENDEZ _ J.S.C. NON-FINAL [)JSPdSITION Check if appropriate: D DO NOT POST D REFERENCE 4 of 4