Essex Credit v. Theodore Tarantini Associates

19 Citing cases

  1. CCAP Auto Lease Ltd. v. Savannah Car Care, Inc.

    211 A.D.3d 1210 (N.Y. App. Div. 2022)   Cited 6 times

    . Although " CPLR 308(2) is service ‘other than by personal delivery,’ so as to avail [him] of the provisions of CPLR 317" ( Essex Credit Corp. v. Tarantini Assoc., 179 A.D.2d 973, 973–974, 579 N.Y.S.2d 235 [3d Dept. 1992] ), we find that the various notices sent directly to Lalman, including the information subpoena and the correspondence that followed seeking his compliance, were sufficient to alert him of the proceeding in time to respond in some manner, and his mere denial of receipt of those mailings is insufficient to rebut the presumption of mailing (seeReverse Mtge. Solutions, Inc. v. Lawrence, 200 A.D.3d at 1148, 159 N.Y.S.3d 526 ; Clover M. Barrett, P.C. v. Gordon, 90 A.D.3d 973, 973–974, 936 N.Y.S.2d 217 [2d Dept. 2011] ). The foregoing further establishes the lack of any reasonable excuse for Lalman's default on the contempt motion necessary for relief pursuant to CPLR 5015(a)(1) (seeReverse Mtge. Solutions, Inc. v. Lawrence, 200 A.D.3d at 1148, 159 N.Y.S.3d 526 ; Ross v. Sunrise Home Improvement, 186 A.D.3d 633, 634, 129 N.Y.S.3d 164 [2d Dept. 2020] ; Essex Credit Corp. v. Tarantini Assoc., 179 A.D.2d at 973–974, 579 N.Y.S.2d 235 ).

  2. Mil-Spec Indus. Corp. v. Precision Ammunition, LLC

    14-CV-7099 (JS)(SIL) (E.D.N.Y. Aug. 5, 2016)   Cited 3 times

    The fact that Young was an independent contractor for Precision is irrelevant. See Albilia v. Hillcrest Gen. Hosp., 124 A.D.2d 499, 500, 508 N.Y.S.2d 10, 10 (2d Dep't 1986) ("service of a copy of the summons and complaint upon . . . a receptionist" at the defendant's place of business "constituted delivery to a person of suitable age and discretion."); Essex Credit Corp. v. Theodore Tarantini Associates Ltd., 179 A.D.2d 973, 973, 579 N.Y.S.2d 235, 236 (3d Dep't 1992) ("Defendant's allegation that [the recipient of process] was not his employee, but was, rather, an independent contractor, is insufficient to raise a legitimate factual issue as to whether [he] was a person of suitable age and discretion").

  3. Jackson v. Professional Transp. Corp.

    81 A.D.3d 602 (N.Y. App. Div. 2011)   Cited 18 times

    Here, by its own admission, the defendant received the summons and complaint well before the motion for a default judgment was made and in ample time to seek leave to serve a late answer. Accordingly, the defendant failed to establish that it did not receive the summons in time to defend within the meaning of the statute ( see Gartner v Unified Windows, Doors Siding, Inc., 71 AD3d 631, 632; SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604, 605; Majestic Clothing Inc. v East Coast Stor, LLC, 18 AD3d 516, 517-518; Fleetwood Park Corp. v Jerrick Waterproofing Co., 203 AD2d 238, 239; Essex Credit Corp. v Tarantini Assoc., 179 AD2d 973, 974).

  4. Electric Insurance Company v. Grajower

    256 A.D.2d 833 (N.Y. App. Div. 1998)   Cited 19 times
    Describing an affidavit using similar language as "a carefully worded affidavit in which [the defendant] did not deny receiving the summons and complaint"

    In support of his vacatur motion, defendant submitted a carefully worded affidavit in which he did not deny receiving the summons and complaint served by Gerdes on September 5, 1996 ( see, Essex Credit Corp. v. Tarantini Assocs., 179 A.D.2d 973). Rather, he averred that neither he nor "any suitable member of my place of business or household was ever served", that he neither knew nor employed a "Joan Morris", and that consequently "Joan Morris" was unauthorized to accept process on his behalf.

  5. Nicolosi v. Sleuth Security Systems, Ltd.

    247 A.D.2d 521 (N.Y. App. Div. 1998)   Cited 3 times

    The record reveals that the plaintiff effected service upon the corporate defendant in 1993 by delivering a copy of the summons and complaint to its agent at its business address on Route 112 in Medford ( see, CPLR 311). The corporate defendant failed to establish that it did not receive actual notice of the summons in time to defend ( see, Fleetwood Park Corp. v. Jerrick Waterproofing Co., 203 A.D.2d 238; Mann-Tell Realty Corp. v. Cappadora Realty Corp., 184 A.D.2d 497; Essex Credit Corp. v. Tarantini Assocs., 179 A.D.2d 973).

  6. Rivera v. 999 Realty Management

    246 A.D.2d 637 (N.Y. App. Div. 1998)   Cited 1 times

    Moreover, the defendant failed to rebut satisfactorily the evidence submitted by the plaintiffs that copies of the summons and complaint were delivered in 1992 to the defendant at its business address in Brooklyn. Accordingly, the defendant failed to meet its burden of showing that it did not receive actual notice of the summons in time to defend ( see, Fleetwood Park Corp. v. Jerrick Waterproofing Co., 203 A.D.2d 238; Essex Credit Corp. v. Tarantini Assocs., 179 A.D.2d 973). The defendant's conclusory allegations that there are issues of fact as to the circumstances surrounding the injured plaintiff's accident are insufficient to establish that it has a meritorious defense to this action.

  7. National Recovery Sys. v. Weiss

    226 A.D.2d 289 (N.Y. App. Div. 1996)   Cited 12 times

    Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.). Defendant has not demonstrated a reasonable excuse for the default, since he has failed to raise any genuine dispute as to the fact that that he was properly served with the summons, notice of motion and affirmation ( see, Essex Credit Corp. vTarantini Assocs., 179 A.D.2d 973). The affidavit of service states that the papers were served on a certain date at defendant's home address on a woman who identified herself as defendant's housekeeper. Defendant denies that his housekeeper was served, but does not substantiate his assertion that the actual appearance of his housekeeper differs from the description provided in the affidavit of service, does not deny that the name of the housekeeper mentioned in the affidavit is accurate, and fails to submit an affidavit from the housekeeper disputing that service was effected.

  8. Fennell v. Mason

    204 A.D.2d 599 (N.Y. App. Div. 1994)   Cited 64 times

    Contrary to the defendant's contention, the Supreme Court properly denied his motion to vacate his default in responding to the summons with notice. The motion to vacate could not be made pursuant to CPLR 317, inasmuch as the defendant did not allege, nor does the record establish, that he "did not personally receive notice of the summons in time to defend" (CPLR 317; see generally, Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138; Getz v. Stuyvesant Manor, 194 A.D.2d 589; Essex Credit Corp. v. Tarantini Assocs., 179 A.D.2d 973). Since the defendant's motion was properly treated as one to vacate a default pursuant to CPLR 5015 (a) (1), he was required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see, Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., supra; People v Scudds, 195 A.D.2d 778; Aponte v. Raychuk, 172 A.D.2d 280, affd 78 N.Y.2d 992; Vierya v. Briggs Stratton Corp., 166 A.D.2d 645).

  9. Fleetwood Park Corp. v. Jerrick Waterproofing

    203 A.D.2d 238 (N.Y. App. Div. 1994)   Cited 37 times

    Although service of the summons was made upon the defendant by service "other than [by] personal delivery," so as to avail the defendant of the provisions of CPLR 317, as discussed above, the defendant has failed to establish that it did not receive actual notice of the summons in time to defend, as required by CPLR 317 (see, Essex Credit Corp. v Tarantini Assocs., 179 A.D.2d 973). Mangano, P.J., Miller, Hart and Florio, JJ., concur.

  10. Dean v. Sarner

    201 A.D.2d 770 (N.Y. App. Div. 1994)   Cited 12 times

    Supreme Court acted within its discretion in denying Sarner's motion without conducting a traverse hearing because her affidavits did not raise an issue of fact in conflict with the affidavit of service (see, Colon v. Beekman Downtown Hosp., 111 A.D.2d 841). While Sarner points out that the process server apparently misnamed the security guard, she notably does not deny receiving the summons from the security guard, nor does she contend that he or she was not a person of suitable age or discretion (see, Essex Credit Corp. v. Tarantini Assocs., 179 A.D.2d 973). Also, her mere denial of the receipt of the summons by mail, without further probative facts, is insufficient to overcome the presumption of delivery which attaches to a properly mailed letter (see, Public Adm'r of County of N.Y. v. Markowitz, 163 A.D.2d 100).