Opinion
2003-778 S C.
Decided February 25, 2004.
Appeal by defendant from an order of the District Court, Suffolk County (P. Hensley, J.), dated Apri1 18, 2003, which denied his motion to vacate a default judgment.
Order unanimously affirmed with $10 costs.
PRESENT: McCABE, P.J., LIFSON and SKELOS, JJ.
Plaintiff sold goods to a pharmacy in which defendant was a principal. After unsuccessful attempts to collect the unpaid balance due from defendant, plaintiff commenced this action to recover same. Defendant failed to answer or otherwise appear and a default judgment was entered against defendant in November 2000. In December 2000, after defendant learned of the entered judgment, his counsel wrote several letters to plaintiff's counsel, one of which stated that defendant had been advised, inter alia, that the judgment was improper because the debt was incurred by the corporation which owned the pharmacy and not by the defendant in his individual capacity. Defendant's counsel requested that plaintiff not seek to enforce the judgment. More than two years later, defendant moved for an order vacating the default judgment and permitting him to interpose an answer. Defendant's motion was denied and this appeal ensued.
While a motion to vacate a judgment based upon lack of jurisdiction may be made at any time ( see First E. Bank v. Lomar Contrs., 237 AD2d 248, 249), the process server's affidavit made a prima facie showing that service was properly effected pursuant to CPLR 308 (4) ( see Hanover New England v. MacDougall, 202 AD2d 724; see also Vento v. City of New York, 247 AD2d 535; Daniels v. Farrell, 216 AD2d 513). As a result, defendant's conclusory denial of receipt was insufficient ( see Truscello v. Olympia Constr., 294 AD2d 350 [20021; De La Barrera v. Handler, 290 AD2d 476 [20021; Sardar v. Birra, 287 AD2d 446; Fairmount Funding v. Stefansky, 235 AD2d 213). Moreover, inasmuch as defendant did not move for an order vacating the default judgment entered against him until more than two years after he learned of the judgment, defendant's motion was properly denied because it was untimely ( see CPLR 317, 5015 [a] [1]; Nahmani v. Town of Ramapo, 262 AD2d 291; see also Matter of Angelidis v. New York State Div. of Hous. Community Renewal, 206 AD2d 975).
In light of the foregoing, defendant's remaining contention is rendered academic.