Opinion
2002-02676
Argued March 7, 2003.
April 7, 2003.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Mason, J.), dated January 29, 2002, as, in effect, granted that branch of the defendants' motion which was to vacate so much of a judgment of the same court, dated December 13, 2001, as was in its favor and against the defendant Leo Bitetto, entered upon Bitetto's failure to appear or answer, and to dismiss the complaint insofar as asserted against that defendant.
Mandel Resnik Kaiser Moskowitz Greenstein, P.C., New York, N.Y. (Edward M. Shapiro, and James Lotito of counsel), for appellant.
Martin C. Julius, Mineola, N.Y. (Edward J. King and Jordan Masiakos of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to vacate so much of the judgment as was in favor of the plaintiff and against the defendant Leo Bitetto and to dismiss the complaint insofar as asserted against that defendant is denied, and the judgment dated December 13, 2001, is reinstated.
Contrary to the determination of the Supreme Court, the conclusory allegations of the defendant Leo Bitetto that he did not receive the summons and complaint were insufficient to satisfy the burden for vacating his default (see Thattil v. Mondesir, 275 A.D.2d 408, 409; Remington Inv. v. Seiden, 240 A.D.2d 647; Sando Realty Corp. v. Aris, 209 A.D.2d 682).
The remaining contentions are without merit.
FLORIO, J.P., S. MILLER, CRANE and RIVERA, JJ., concur.