Can a corporation which has failed to update its address with New York's Secretary of State ("SOS") still demonstrate an excusable default when it fails to respond to a court deadline?
By law, a corporation may be served with legal process by way of the SOS, who will then forward those documents to the last registered address for the intended recipient.
When designated agents change or relocate, and/or when these entities move, corporations are required to file a " certificate of change " with the SOS, otherwise papers will continue to be directed to that entity's last recorded address, important court deadlines might be missed, and, a judgment on default could ensue.
By way of example, in Cantarelli S.P.A. v. L. Della Cella Co., Inc ., L. Della Cella Co., Inc. (LDCCI) failed to advise the SOS of its move. Upon receiving a copy of the summons and complaint after its time to answer had expired, LDCCI reached an agreement with Cantarelli, that the plaintiff would take no further action against the defendant while settlement discussions were underway.
Unable to resolve the dispute, Cantarelli sought to enter judgment, but the New York County Supreme Court granted LDCCI'S motion to vacate its default.
On appeal, the Appellate Division, First Department, was of the opinion that, since there were meritorious defenses to the action, LDCCI should not be penalized for its lapses.
Clearly, this case demonstrates that a corporation's failure to give an SOS update, won't necessarily turn into a Song of Sorrow .
For a copy of the Appellate Division's decision, please use this link: Cantarelli S.P.A. v. L. Della Cella Co., Inc .