Opinion
No. 2014–2442 K C.
04-25-2016
Tameka STEPHENSON, Respondent, v. 305 REALTY NY, LLC and Pinnacle Management, Appellants.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 18, 2014, and an order of the same court (Ingrid Joseph, J.) entered September 29, 2014. The order entered March 18, 2014 denied defendants' motion to vacate a default judgment and dismiss the complaint. The order entered September 29, 2014, insofar as appealed from, upon, in effect, reargument and renewal, adhered to the prior determination.
ORDERED that the appeal from the order entered March 18, 2014 is dismissed, as that order was superseded by the order entered September 29, 2014 made upon, in effect, reargument and renewal; and it is further,
ORDERED that the order entered September 29, 2014, insofar as appealed from, is affirmed, without costs.
In this action for the return of a security deposit and damages for the loss of personal property, defendants' motion to vacate a default judgment that had been entered against them was denied by the Civil Court (Robin S. Garson, J.) in an order dated March 18, 2014. Upon, in effect, reargument and renewal, the Civil Court (Ingrid Joseph, J.), by order entered September 29, 2014, adhered to the prior determination.
In support of their motion for reargument and renewal, defendants submitted an affidavit by Donna Fabrizio, the executive manager of defendant Pinnacle Management, in which she stated that defendants had not been served with the summons and endorsed complaint, and defendants had not received notice of the inquest. Upon a review of the record, we find that the Civil Court, upon, in effect, granting leave to reargue and renew, did not improvidently exercise its discretion in adhering to the prior determination denying defendants' motion to vacate the default judgment. Defendants' conclusory allegations with regard to their failure to answer or to appear were insufficient to rebut the presumption of proper service of process (see Irwin Mtge. Corp. v. Devis, 72 AD3d 743 [2010] ; Roberts v. Anka, 45 AD3d 752 [2007] ). Moreover, defendants' conclusory allegations failed to demonstrate that they had a reasonable excuse for their default in appearing in the action (see CPLR 5015[a][1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986] ). Similarly, as the Civil Court noted, the court file indicated that a notice of inquest had been mailed to defendants, and defendants' conclusory assertion that they had not received the notice was insufficient to rebut the presumption of receipt (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 [2001] ).
Accordingly, the appeal from the order entered March 18, 2014 is dismissed, as that order was superseded by the order entered September 29, 2014 made upon, in effect, reargument and renewal. The order entered September 29, 2014, insofar as appealed from, is affirmed.
ELLIOT, J.P., WESTON and SOLOMON, JJ., concur.