Opinion
17563 Index No. 650082/21 Case No. 2022-01390
03-21-2023
ASTRAEA NYNY LLC, Plaintiff–Respondent, v. Declan GANLEY, Defendant–Appellant.
Schulte Roth & Zabel LLP, New York (Douglas S. Mintz of counsel), for appellant. Tarter Krinsky & Drogin LLP, New York (Richard C. Schoenstein of counsel), for respondent.
Schulte Roth & Zabel LLP, New York (Douglas S. Mintz of counsel), for appellant.
Tarter Krinsky & Drogin LLP, New York (Richard C. Schoenstein of counsel), for respondent.
Manzanet–Daniels, J.P., Singh, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Jennifer Schecter, J.), entered March 9, 2022, which denied defendant's motion to vacate the default judgment against him, unanimously affirmed, without costs.
Supreme Court providently found that jurisdiction was obtained over defendant by proper service of the summons and complaint, and that that he was not entitled to vacatur pursuant to CPLR 5015(a)(4). Defendant's conclusory denial that he was not served as alleged in the properly executed affidavit of service of plaintiff's process server is insufficient to rebut the presumption of service created by that affidavit (see U.S. Bank N.A. v. Martinez, 139 A.D.3d 548, 549, 34 N.Y.S.3d 3 [1st Dept. 2016] ). That defendant was not served pursuant to CPLR 312–a(a) is of no moment because defendant was served at the address he provided in the loan agreements and served in the manner stated in those agreements (see Credit Car Leasing Corp. v. Elan Group Corp., 185 A.D.2d 109, 109, 586 N.Y.S.2d 3 [1st Dept. 1992] ).
Defendant's claim that plaintiff may not avail itself of the contractual service provision in the loan agreements because defendant did not have written notice of the assignment is belied by the record. On July 27, 2020, about six months before plaintiff moved for a default judgment against defendant, defendant's then counsel received a draft of the settlement agreement between the original lender and plaintiff's predecessor in interest stating that the predecessor would assign to plaintiff the original lender's rights (see Capital Factors v. Caldor, Inc., 182 A.D.2d 532, 582 N.Y.S.2d 1012 [1st Dept. 1992] ).
Furthermore, the court providently exercised its discretion in denying defendant's motion to vacate the default judgment pursuant to CPLR 5015(a)(1) based on his failure to demonstrate a reasonable excuse for the default ( CPLR 5015[a][1] ; see Rodgers v. 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 A.D.3d 510, 510, 893 N.Y.S.2d 55 [1st Dept. 2010] ). His suggestion that his lack of knowledge of the service provisions in the subject loan agreements he signed does not constitute a reasonable excuse for his default in answering the complaint (see Buckley v. Nicklous, 210 A.D.3d 575, 575, 180 N.Y.S.3d 6 [1st Dept. 2022] ). Since defendant's proffered excuse was not reasonable, this Court need not determine whether he showed a potentially meritorious defense (see Besler v. Uzieri, 179 A.D.3d 628, 628–629, 114 N.Y.S.3d 879 [1st Dept. 2020] ). Contrary to defendant's contention, relief under CPLR 317 is not warranted. Defendant failed to rebut plaintiff's proof showing that he received actual notice of the action in time to defend, because the record shows that plaintiff's counsel emailed defendant's counsel the summons and complaint about 20 days before plaintiff moved for a default judgment against defendant and noted that plaintiff would be seeking such relief as service of process was effectuated "in conformance with the relevant contract provisions" (see Frazier v. 811 E. 178th St. Realty Corp., 183 A.D.3d 413, 413, 121 N.Y.S.3d 596 [1st Dept. 2020] ).
Finally, the court providently exercised its discretion in denying defendant's motion to vacate the default judgment in the interest of justice (see CPLR 5015[a] ). Defendant failed to set forth a sufficient reason to invoke the court's inherent power to vacate the default judgment in the interests of substantial justice given that he does not suggest that he paid back the loan (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ).