Opinion
13282N-13282NA Index No. 656127/18 Case No. 2020-01467
03-04-2021
RUDD MECHANICAL ASSOCIATES, INC., Plaintiff–Appellant, v. ZDG, LLC, et al., Defendants, Press Builders, Inc., et al., Defendants–Respondents.
Law Offices of Yitzchak E. Cohen, New York (Yitzchak E. Cohen of counsel), for appellant. Hollander Law Group PLLC, Great Neck (Michael R. Strauss of counsel), for respondents.
Law Offices of Yitzchak E. Cohen, New York (Yitzchak E. Cohen of counsel), for appellant.
Hollander Law Group PLLC, Great Neck (Michael R. Strauss of counsel), for respondents.
Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.
Orders, Supreme Court, New York County (Louis L. Nock, J.), entered January 9, 2020, which granted defendants Press Builders Inc.’s and Metro NYC Services, Inc. and 310 Group, LLC's motions to vacate the default judgments entered against them, unanimously reversed, on the law, without costs, and the motions denied.
Defendants failed to demonstrate a reasonable excuse for their default in answering the complaint ( CPLR 5015[a] ; see generally Leader v. Parkside Group, 174 A.D.3d 420, 421, 103 N.Y.S.3d 427 [1st Dept. 2019], lv dismissed 33 N.Y.3d 1111, 106 N.Y.S.3d 703, 130 N.E.3d 1313 [2019] ).
It is undisputed that defendants Metro and 310 Group were personally served with the summons and complaint. They failed to provide a reasonable excuse for their defaults in answering and in opposing plaintiff's motion for a default judgment. Their claims of a settlement are unsubstantiated; indeed, plaintiff continued to litigate this action even after this purported settlement was reached, and contacted their counsel before moving for entry of a default judgment (see Reliable Abstract Co., LLC v. 45 John Lofts, LLC, 152 A.D.3d 429, 430, 58 N.Y.S.3d 365 [1st Dept. 2017], lv dismissed 30 N.Y.3d 1056, 69 N.Y.S.3d 585, 92 N.E.3d 808 [2018] ). Their purported belief that the matter was resolved is further undermined by their undisputed receipt of plaintiff's motion for a default judgment and their failure to respond to it (see Sanchez v. Avuben Realty LLC, 78 A.D.3d 589, 912 N.Y.S.2d 185 [1st Dept. 2010] ; see also Neely v. Felicetti, 177 A.D.3d 484, 111 N.Y.S.3d 611 [1st Dept. 2019] ). Counsel's claim of law office failure is unsubstantiated (see Fernandez v. Santos, 161 A.D.3d 473, 76 N.Y.S.3d 147 [1st Dept. 2018] ).
Defendant Press Builders denied that it received or was properly served with the summons and complaint. However, the mere denial of receipt was insufficient to rebut the presumption of proper service arising from plaintiff's amended affidavit of service on Press Builders's office ( Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 119 N.Y.S.3d 474 [1st Dept. 2020] ). Press Builders did not dispute the description of the person who was served or otherwise "swear to specific facts to rebut the statements in the process server's affidavit" ( JP Morgan Chase Bank v. Dennis, 166 A.D.3d 530, 531, 89 N.Y.S.3d 135 [1st Dept. 2018] ).
As defendants failed to demonstrate a reasonable excuse for the default, we need not address whether they demonstrated a meritorious defense (see Gonzalez v. Praise the Lord Dental, 79 A.D.3d 550, 912 N.Y.S.2d 403 [1st Dept. 2010] ).