Opinion
Filed May 2, 2001.
Appeal from Order and Judgment of Supreme Court, Onondaga County, Major, J. — Vacate Judgment.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER AND BURNS, JJ.
Order and judgment unanimously affirmed with costs.
Memorandum:
Supreme Court properly denied defendant's motion to vacate the default judgment for lack of jurisdiction ( see, CPLR 5015 [a] [4]) (appeal No. 2). "While there was conflicting hearing testimony regarding whether process was personally delivered to the defendant, it is well settled that the factual findings and credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless they are against the weight of the credible evidence" ( Yasuda Bank Trust Co. v. Oree, 233 A.D.2d 391; see, Greenpoint Sav. Bank v. Patel, 267 A.D.2d 204, 204-205; Matter of Reisz v. Reisz, 267 A.D.2d 462; Citibank v. Baronat, 238 A.D.2d 369). Here, there is no basis to disturb the court's determination that defendant was properly served.
The court also properly denied defendant's motion to vacate the default judgment on the alternative ground of excusable default ( see, CPLR 5015 [a] [1]). Even assuming that defendant presented a reasonable excuse for the default, we conclude that, "[i]n the absence of an affidavit by one with personal knowledge of the facts, defendant failed to establish a meritorious defense to the action" ( City of New York v. Elghanayan, 214 A.D.2d 329, lv dismissed 87 N.Y.2d 968; see, Bray v. Luca, 233 A.D.2d 284, 285; Miles v. Blue Label Trucking, 232 A.D.2d 382, lv dismissed 89 N.Y.2d 917; Cooper v. Badruddin, 192 A.D.2d 997, 997-998). Although "[a] 'verified pleading' may be utilized as an affidavit whenever the latter is required" (CPLR 105 [u]), defendant's verified answer contains no evidentiary facts and thus "fails to constitute an adequate affidavit of merit" ( Cooper v. Badruddin, supra, at 997; see, Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872; Stewart v. Warren, 134 A.D.2d 585, 586).
Defendant's remaining contention, that the court erred in ordering an inquest to determine damages, pertains to the order granting the default judgment (appeal No. 1). No appeal lies from that order ( see, Matter of Ozolins [appeal No. 2], 65 A.D.2d 958; CPLR 5511), and thus that contention is not properly before us.