Opinion
04-30-2024
Khalid ALGHAFLY et al., Plaintiffs–Respondents, v. Fadi EWIESS also known as Fadi Awise, Defendant–Appellant.
Law Office of Frederica L. Miller, PLLC, New York (Frederica Miller of counsel), for respondents.
Law Office of Frederica L. Miller, PLLC, New York (Frederica Miller of counsel), for respondents. Singh, J.P., Gesmer, Kennedy, Scarpulla, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Andrea Masley, J.), entered June 29, 2023, which denied defendant’s CPLR 5015 motion to vacate the default judgment, unanimously affirmed, without costs.
Defendant supported his motion to vacate the default judgment under CPLR 5015(a)(4) only by an affidavit by his counsel containing conclusory allegations not based on personal knowledge. He failed to submit his own affidavit by defendant averring that he never transacted business in New York (see cf Liu Yu v. Ma, 145 A.D.3d 577, 577, 43 N.Y.S.3d 323 [1st Dept. 2016]). Accordingly, defendant did not adequately raise the issue that the court lacked personal jurisdiction over him pursuant to CPLR 302(a)(1) Furthermore, based on the record, plaintiff at least "demonstrated a basis for jurisdiction" (see SOS Capital v. Recycling Paper Partners of PA, LLC, 220 A.D.3d 25, 38, 196 N.Y.S.3d 382 [1st Dept. 2023]) and the motion to vacate on this ground was properly denied.
Similarly, the court also correctly declined to grant the motion to vacate his default based on the CPLR 5015(a)(1). Defendant could not demonstrate either a reasonable excuse for his default or a meritorious defense to the action because "he submitted his motion without an affidavit by someone with personal knowledge of the pertinent facts, i.e., himself," and the affirmation by his counsel, who lacked personal knowledge, was insufficient for this purpose (Yaffe v. Shkreli, 187 A.D.3d 592, 592, 130 N.Y.S.3d 686 [1st Dept. 2020]; see also Mohamed v. Mohamed, 176 A.D.3d 567, 567–568, 108 N.Y.S.3d 852 [1st Dept. 2019]).