Opinion
March 13, 1995
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the plaintiffs' complaint is dismissed.
The Supreme Court improvidently exercised its discretion in vacating the plaintiffs' default and reinstating the complaint. The motion to vacate was untimely and the plaintiffs failed to establish a reasonable excuse for their default and the existence of a meritorious cause of action (see, Putney v. Pearlman, 203 A.D.2d 333; Fennell v. Mason, 204 A.D.2d 599; Schiavetta v. McKeon, 190 A.D.2d 724). The unsubstantiated excuse proffered by the plaintiffs' attorney that she never received properly mailed motion papers and orders with a notice of entry was insufficient to rebut the proofs of service and the presumption of receipt (see, Jeraci v. Froehlich, 129 A.D.2d 557, 558-559). Additionally, the plaintiffs' complete failure to submit an affidavit of merit was fatal to their motion to vacate (see, Vierya v. Briggs Stratton Corp., 166 A.D.2d 645, 646). Mangano, P.J., O'Brien, Ritter, Pizzuto and Florio, JJ., concur.