Opinion
No. 2023-04225 Index No. 59289/22
10-02-2024
RG Remodeling, Inc., respondent, v. David L. Greco, et al., appellants.
Law Office of Mario DeMarco, P.C., Port Chester, NY (Michelle DeGiorgio of counsel), for appellants. Benowich Law, LLP, White Plains, NY (Leonard Benowich of counsel), for respondent.
Law Office of Mario DeMarco, P.C., Port Chester, NY (Michelle DeGiorgio of counsel), for appellants.
Benowich Law, LLP, White Plains, NY (Leonard Benowich of counsel), for respondent.
MARK C. DILLON, J.P. COLLEEN D. DUFFY LINDA CHRISTOPHER CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Damaris E. Torrent, J.), dated December 14, 2022. The order, insofar as appealed from, denied that branch of the defendants' motion which was pursuant to CPLR 5015(a) to vacate a clerk's judgment of the same court entered June 24, 2022, upon their failure to appear or answer the complaint, which is in favor of the plaintiff and against the defendants in the principal sum of $78,398.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In April 2022, the plaintiff commenced this action, inter alia, to recover damages for breach of contract against the defendants. The defendants failed to appear or answer the complaint. On June 24, 2022, a clerk's judgment was entered upon the defendants' default in favor of the plaintiff and against them in the principal sum of $78,398. Subsequently, the defendants moved, among other things, pursuant to CPLR 5015(a) to vacate the clerk's judgment. In an order dated December 14, 2022, the Supreme Court, inter alia, denied that branch of the motion, and the defendants appeal.
Contrary to the defendants' contention, the Supreme Court properly denied, without a hearing, vacatur of the clerk's judgment pursuant to CPLR 5015(a)(4). The process server's affidavits of service constituted prima facie evidence that the defendants were validly served pursuant to CPLR 308 (see Carver Fed. Sav. Bank v Forde, 214 A.D.3d 851, 852; Bank of N.Y. v Samuels, 107 A.D.3d 653, 653). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (Scarano v Scarano, 63 A.D.3d 716, 716 [citation and internal quotation marks omitted]; see Bank of N.Y. v Samuels, 107 A.D.3d at 653-654). "Bare and unsubstantiated denials are insufficient to rebut the presumption of service" (HSBC Bank USA, N.A. v Archibong, 157 A.D.3d 662, 662-663 [internal quotation marks omitted]). Here, the defendants' bare and unsubstantiated denials failed to rebut the specific facts contained in the process server's affidavits of service, and no hearing was required (see Wilmington Sav. Fund Socy., FSB v Zabrowsky, 212 A.D.3d 866, 869-870; Green Tree Servicing, LLC v Frantzeskakis, 200 A.D.3d 654, 655).
Moreover, insofar as the defendants moved pursuant to CPLR 5015(a)(1) to vacate the clerk's judgment, they failed to establish a reasonable excuse for their default, since the only excuse they proffered was that they were not served with process (see Barnett v Diamond Fin. Co., Inc., 202 A.D.3d 651, 652; Bank of N.Y. v Samuels, 107 A.D.3d at 654). In view of the absence of a reasonable excuse, we need not consider whether the defendants have provided a potentially meritorious defense to the action (see Bank of N.Y. Mellon Trust Co. N.A. v Hsu, 204 A.D.3d 874, 876; Wells Fargo Bank, N.A. v Hyun Jung Kim, 189 A.D.3d 1673, 1674).
Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 5015(a) to vacate the clerk's judgment.
The defendants' remaining contention need not be reached in light of our determination.
We decline the plaintiff's request to impose a sanction against the defendants for pursuing this allegedly frivolous appeal (see 22 NYCRR 130-1.1).
DILLON, J.P., DUFFY, CHRISTOPHER and LANDICINO, JJ., concur.