Opinion
2002-02711
Argued March 14, 2003.
April 14, 2003.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hubsher, J.), dated November 27, 2001, as denied their motion to vacate a judgment of the same court, dated June 28, 2001, entered upon their default in appearing and answering.
Gil A. Chachkes, Brooklyn, N.Y., for appellants.
Wilkofsky, Friedman, Karel Cummins, New York, N.Y. (Frank P. Winston of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The process server's affidavits of service constitute prima facie evidence of proper service pursuant to CPLR 308(2), and the defendants' unsubstantiated denials of service of the summons and complaint were insufficient to rebut that showing (see Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375; Sando Realty Corp. v. Aris, 209 A.D.2d 682). Therefore, that branch of the motion which was to vacate the default judgment pursuant to CPLR 5015(a)(4) was properly denied without a hearing (see Sardar v. Birra, 287 A.D.2d 446).
The defendants were not entitled to relief pursuant to CPLR 317 or CPLR 5015(a)(1), since they failed to show either that they did not receive notice of the action in time to defend, or that their default in appearing and answering was not intentional (see Incorporated Vil. of Hempstead v. Jablonsky, 283 A.D.2d 553; Eretz Funding v. Shalosh Assocs., 266 A.D.2d 184, 185).
FLORIO, J.P., LUCIANO, SCHMIDT and COZIER, JJ., concur.