Opinion
2013-01-16
Dawn STEVENS, appellant, v. Mark Anthony Louis CHARLES, respondent.
Kujawski & Kujawski, Deer Park, N.Y. (Mark C. Kujawski of counsel), for appellant. Sepe & O'Mahony, PLLC, Rockville Centre, N.Y. (Michael J. Sepe and William J. O'Mahony of counsel), for respondent.
Kujawski & Kujawski, Deer Park, N.Y. (Mark C. Kujawski of counsel), for appellant. Sepe & O'Mahony, PLLC, Rockville Centre, N.Y. (Michael J. Sepe and William J. O'Mahony of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated November 8, 2011, which granted the defendant's motion, in effect, to vacate an order of the same court dated December 2, 2009, granting the plaintiff's unopposed motion for leave to enter judgment against the defendant on the issue of liability upon his default in appearing or answering, and any judgment entered thereon, and, in effect, for leave to serve a late answer.
ORDERED that the order dated November 8, 2011, is reversed, on the law, with costs, the defendant's motion, in effect, to vacate an order of the same court dated December 2, 2009, granting the plaintiff's unopposed motion for leave to enter judgment against the defendant on the issue of liability upon his default in appearing or answering, and any judgment entered thereon, and, in effect, for leave to serve a late answer is denied, and the order dated December 2, 2009, is reinstated.
In support of that branch of his motion which was pursuant to CPLR 5015(a)(1), the defendant was required to demonstrate a reasonable excuse for his default in appearing or answering and a potentially meritorious defense to the action ( seeCPLR 5015[a][1]; Arias v. First Presbyt. Church in Jamaica, 100 A.D.3d 940, 957 N.Y.S.2d 121;Ramirez v. Islandia Exec. Plaza, LLC, 92 A.D.3d 747, 748, 939 N.Y.S.2d 100;Cooney v. Cambridge Mgt. & Realty Corp., 35 A.D.3d 522, 826 N.Y.S.2d 639). The affidavit of the plaintiff's process server constituted prima facie evidence that the defendant was validly served at his actual place of business pursuant to CPLR 308(2) ( see Bank of N.Y. v. Segui, 68 A.D.3d 908, 909, 890 N.Y.S.2d 830;Cavalry Portfolio Servs., LLC v. Reisman, 55 A.D.3d 524, 525, 865 N.Y.S.2d 286;Jefferson v. Netusil, 44 A.D.3d 621, 843 N.Y.S.2d 158). The defendant's bare and unsubstantiated assertion that he did not receive the complaint was insufficient to establish a reasonable excuse for his default ( see Chichester v. Alal–Amin Grocery & Halal Meat, 100 A.D.3d 820, 954 N.Y.S.2d 577;Reich v. Redley, 96 A.D.3d 1038, 1039, 947 N.Y.S.2d 564;Pezolano v. Incorporated City of Glen Cove, 71 A.D.3d 970, 971, 896 N.Y.S.2d 685;Roberts v. Anka, 45 A.D.3d 752, 754, 846 N.Y.S.2d 280). Furthermore, the defendant's assertions that he was not familiar with the American legal system and could not afford an attorney were insufficient to excuse the approximately 15–month delay between the time that he received notice of the scheduled inquest on the issue of damages and the time that he moved to vacate his default ( see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 912 N.Y.S.2d 285;O'Donnell v. Frangakis, 76 A.D.3d 999, 1000, 908 N.Y.S.2d 589;Matter of Nieto, 70 A.D.3d 831, 832, 894 N.Y.S.2d 502;Dorrer v. Berry, 37 A.D.3d 519, 520, 830 N.Y.S.2d 277;Nahar v. Awan, 33 A.D.3d 680, 681, 821 N.Y.S.2d 894;Robinson v. 1068 Flatbush Realty, Inc., 10 A.D.3d 716, 781 N.Y.S.2d 901;Eretz Funding v. Shalosh Assoc., 266 A.D.2d 184, 697 N.Y.S.2d 335;Perellie v. Crimson's Rest., 108 A.D.2d 903, 904, 485 N.Y.S.2d 789). Since the defendant failed to demonstrate a reasonable excuse, he was not entitled to relief pursuant to CPLR 5015(a)(1) ( see O'Donnell v. Frangakis, 76 A.D.3d at 1000, 908 N.Y.S.2d 589).
In support of that branch of his motion which was pursuant to CPLR 317, the defendant was required to demonstrate that he did not personally receive notice of the summons in time to defend and a potentially meritorious defense ( seeCPLR 317; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 728, 469 N.Y.S.2d 74, 456 N.E.2d 1197;Fleisher v. Kaba, 78 A.D.3d 1118, 1119, 912 N.Y.S.2d 604;Cohen v. Michelle Tenants Corp., 63 A.D.3d 1097, 1098, 882 N.Y.S.2d 282;Reyes v. DCH Mgt., Inc., 56 A.D.3d 644, 867 N.Y.S.2d 340). The defendant's mere denial of receipt of the summons and complaint was insufficient to establish lack of actual notice for purposes of obtaining relief pursuant to CPLR 317 ( see Chichester v. Alal–Amin Grocery & Halal Meat, 100 A.D.3d 820, 954 N.Y.S.2d 577;Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 754, 941 N.Y.S.2d 679;Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081–1082, 923 N.Y.S.2d 572;Levine v. Forgotson's Cent. Auto & Elec., Inc., 41 A.D.3d 552, 553, 840 N.Y.S.2d 598).
The defendant's remaining contention is without merit.
Accordingly, the defendant's motion should have been denied.