MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Lebous, J.), entered July 30, 2019 in Broome County, which granted defendants motion for summary judgment dismissing the complaint.
In July 2017, a judgment creditor served upon Peoples Neighborhood Bank (hereinafter Peoples Bank) a restraining notice entered by Binghamton City Court directing it to hold $11,542.22 from plaintiffs bank account pursuant to CPLR 5222(b). Peoples Bank removed the hold on the funds in October 2018 following receipt of an order vacating the judgment that had led to the issuance of the restraining notice.
On November 7, 2018, plaintiff commenced this action for tortious conversion of said funds, asserting over 400 causes of action and naming Peoples Bank in the caption. Plaintiff purported to serve the summons and complaint upon Peoples Bank that same day by delivering a copy thereof to an unspecified person at a branch in the City of Binghamton, Broome County. However, the affidavit of service in the record lists a “notice of motion and affidavit in support” as the documents that were served.
On November 28, 2018, Peoples Bank moved to dismiss the complaint pursuant to CPLR 3211(a)(8) and 302(a), arguing, among other things, that plaintiff had named a nonexistent entity insofar as Peoples Bank had merged with “Penn Security Bank” in 2013 to form “Peoples Security Bank & Trust Company.” Accordingly, Peoples Bank contended that Supreme Court lacked personal jurisdiction over it. Plaintiff cross-moved for a default judgment on the ground that Peoples Bank had failed to appear within 20 days of receiving the summons and complaint. Peoples Bank opposed the cross motion, arguing that a default judgment was unavailable because plaintiff failed to establish proper service upon it and named a nonexistent entity.
Following a hearing on the motion and cross motion, Supreme Court received a letter from an attorney for “Peoples Security Bank and Trust Company” stating that he would accept service of a supplemental summons and an amended complaint with the proper entity named as the defendant in order to avoid a traverse hearing. Accordingly, in January 2019, Supreme Court denied the motion and cross motion, directing plaintiff to file and serve a supplemental summons and amended complaint with the proper entity named in the caption (hereinafter the January 2019 order). On January 18, 2019, prior to the issuance of Supreme Courts January 2019 order, plaintiff filed a supplemental summons and amended complaint listing “Peoples Neighborhood Bank, Peoples Security Bank & Trust Company” as defendant. Plaintiff served those documents the same day by delivering a copy to a customer service representative at defendants branch in Binghamton.
In March 2019, plaintiff again moved for a default judgment against defendant claiming that it had failed to timely answer the amended complaint. Defendant subsequently answered the amended complaint and moved for summary judgment dismissing it. A hearing on the motions ensued, at which defendant argued that plaintiffs motion for a default judgment should be denied because defendant was under the impression that the amended complaint would be served upon its attorney directly insofar as it had previously appeared in the action as a represented party (see CPLR 2103[b]). Defendant also argued that it could not be held liable for conversion because it lawfully placed a hold on plaintiffs funds pursuant to a duly executed restraining notice (see CPLR 5222). In July 2019, Supreme Court granted defendants motion for summary judgment and dismissed the amended complaint, with prejudice, finding that plaintiff had “no damage claim against the bank under [CPLR 5222–a] or under the common law.” Plaintiff appeals.
We affirm. Initially, contrary to defendants contention, plaintiffs challenge to the January 2019 interim order denying his motion for a default judgment on the original complaint is properly before us on his appeal from the July 2019 final order (see CPLR 5501[a][1]). Nevertheless, Supreme Court did not abuse its discretion in denying plaintiffs request for a default judgment on the original complaint, as not only was plaintiffs November 2018 affidavit of service manifestly deficient to establish proof of service of the correct documents (see CPLR 3215[f]; Levi v. Oberlander, 144 A.D.2d 546, 547, 535 N.Y.S.2d 958 [1988]), but the complaint named and was purportedly served upon a nonexistent entity (see Curry v. New York City Tr. Auth., 30 A.D.3d 299, 299, 818 N.Y.S.2d 39 [2006]; see generally Maldonado v. Maryland Rail Commuter Serv. Admin., 91 N.Y.2d 467, 472, 672 N.Y.S.2d 831, 695 N.E.2d 700 [1998]; Ross v. Lan Chile Airlines, 14 A.D.3d 602, 603, 789 N.Y.S.2d 77 [2005]). Nor did Supreme Court abuse its discretion in denying plaintiffs motion for a default judgment pertaining to the amended complaint, as plaintiff did not establish any prejudice resulting from defendants delay (see Meyer v. Rose, 160 A.D.2d 565, 565, 554 N.Y.S.2d 212 [1990]), and defendant demonstrated both a reasonable excuse and a potentially meritorious defense (see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60–61, 970 N.Y.S.2d 260 [2013]).
Finally, Supreme Court did not err in granting summary judgment to defendant dismissing the amended complaint. Defendant established that it held the funds in plaintiffs account pursuant to a duly executed restraining notice (see CPLR 5222[b]) and released those funds immediately upon being notified that an order had been entered extinguishing the restraining notice. Even if some of those funds should not have been restrained due to their status as statutorily exempt workers compensation funds (see CPLR 5222 [h]; 5205 [l] [2]), no plenary action for common-law conversion lies. Rather, any claim for relief should have been brought by way of a summary proceeding commenced under CPLR article 52 (see Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 65, 979 N.Y.S.2d 257, 2 N.E.3d 221 [2013]).
ORDERED that the order is affirmed, with costs.
Lynch, J.P.
Clark, Mulvey, Pritzker and Colangelo, JJ., concur.