Opinion
526 154978/15.
03-15-2016
Grace GORMAN, et al., Plaintiffs–Appellants, v. Jordan ENGLISH also known as Jordan Gross, Defendant–Respondent, Mobility Places, Inc., Defendant.
Robinson McDonald & Canna LLP, New York (Brett G. Canna of counsel), for appellants. Merle, Brown & Nakamura, P.C., New York (Stephen H. Nakamura of counsel), for respondent.
Robinson McDonald & Canna LLP, New York (Brett G. Canna of counsel), for appellants.
Merle, Brown & Nakamura, P.C., New York (Stephen H. Nakamura of counsel), for respondent.
Opinion
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 5, 2015, which, inter alia, denied plaintiffs' motion for a default judgment against defendant Jordan English, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying plaintiffs' motion for a default judgment. Although plaintiffs submitted an affidavit of the process server stating that service was made, defendant English successfully rebutted the presumption that the summons and complaint had been received, by submitting a sworn affidavit stating that he never received the summons and complaint and evidence that his building had no record of his receiving a package on the days he was allegedly served (see Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84 2d Dept.2015 ). Furthermore, the record demonstrates that the delay was minimal, there was no prejudice to plaintiffs, no showing of willfulness on English's part, and there is a strong public policy in favor of resolving cases on the merits (see New Media Holding Co. LLC v. Kagalovsky, 97 A.D.3d 463, 465–466, 949 N.Y.S.2d 22 1st Dept.2012 ).
English's submissions also establish that he has a meritorious defense to plaintiffs' allegations. Contrary to plaintiffs' contention, English's affidavit contained more than “conclusory allegations or vague assertions” in response to plaintiffs' claims (Peacock v. Kalikow, 239 A.D.2d 188, 190, 658 N.Y.S.2d 7 1st Dept.1997 [internal quotation marks omitted] ).
TOM, J.P., ACOSTA, RENWICK, MOSKOWITZ, JJ., concur.