On March 15, 2024, Justice Platkin of the Albany County Commercial Division issued a decision in Midland Min. Ltd. v. Frank, 2024 NY Slip Op. 50313(U), holding that a defendant’s failure timely to check his mail was no excuse for failing timely to answer, explaining:
Frank appears to rely on CPLR 5015 (a) (1), which permits vacatur of a default judgment upon showing of both a reasonable excuse for the failure to timely answer and the existence of a potentially meritorious defense to the underlying cause of action. The determination of whether to vacate a default judgment is within the discretion of the trial court.
In his moving affidavit, Frank admits that the summons and complaint were delivered to his mailbox, as directed by the Service Order, but Frank claims that he does not check this P.O. Box very often and received the mail too late to file an answer. However, Frank does not indicate how often he checks the mailbox or when he actually retrieved the initiatory papers from the mailbox.
In regard to the latter point, MML submits proof that on December 12, 2022, Frank called the office of MML’s counsel to advise that he had received the initiatory papers in his P.O. Box, and that his current counsel would be defending against this action. Those communications were only 19 days after Frank had been served at his P.O. Box and still within his time to answer the Complaint. This uncontroverted proof demonstrates that Frank lacks a reasonable excuse for his default.
Although not invoked by Frank, the same proof establishes that relief under CPLR 317 is not available to Frank because he personally received notice of this action in time to defend against it.
The Court therefore concludes that Frank has failed to demonstrate a reasonable excuse for his default under CPLR 5015 (a) (1) or his lack of actual notice of the action in time to defend for the purpose of CPLR 317.
Frank argues that he has a valid defense to the default judgment, and specifically the amount of the judgment, obtained by the plaintiff.
Preliminarily, given Frank’s failure to demonstrate a reasonable excuse for his default or lack of notice of the suit in time to defend, the Court need not reach the merits of his potential defenses.
(Internal quotations and citations omitted).