Opinion
2013-05-7
Dalma GONZALEZ, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants, Racson Group Inc., Defendant–Appellant.
Law Offices of Todd M. McCauley, LLC, New York (David F. Tavella of counsel), for appellant. Law Offices of Alan M. Greenberg, P.C., New York (Robert J. Menna of counsel), for respondent.
Law Offices of Todd M. McCauley, LLC, New York (David F. Tavella of counsel), for appellant. Law Offices of Alan M. Greenberg, P.C., New York (Robert J. Menna of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 17, 2012, which denied defendant Racson Group Inc.'s motion to vacate the default judgment entered against it, unanimously affirmed, without costs.
The court properly determined that defendant failed to demonstrate that its default should be vacated under either CPLR 317 or 5015(a)(1). The record indicates that an affidavit of a process server stated that defendant was served through the Secretary of State. Under CPLR 317, defendant was required to demonstrate, inter alia, that it did not receive notice of the summons in time to defend, and that it had a meritorious defense ( see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). However, defendant provided only a conclusory affidavit denying receipt of the pleadings, without further explanation, which was insufficient to rebut the presumption of service created by the process server's affidavit ( see Grinshpun v. Borokhovich, 100 A.D.3d 551, 954 N.Y.S.2d 520 [1st Dept. 2012] ).
Defendant also failed to satisfy the requirements of CPLR 5015(a)(1) by failing to provide a reasonable excuse for its default ( see Rugieri v. Bannister, 7 N.Y.3d 742, 744, 819 N.Y.S.2d 861, 853 N.E.2d 231 [2006] ).