Opinion
No. 2024-236 N C
07-25-2024
Tiffany Chen, Respondent, v. Jun Chao Tan, Also Known as Junchao Tan and Chang Cui Liu, Also Known as Chang Cui Lui, Appellants.
Jun Chao Tan a/k/a Junchao Tan et al., appellants pro se. Tiffany Chen, respondent pro se (no brief filed).
Unpublished Opinion
Jun Chao Tan a/k/a Junchao Tan et al., appellants pro se.
Tiffany Chen, respondent pro se (no brief filed).
PRESENT: GRETCHEN WALSH, J.P., JAMES P. McCORMACK, ELENA GOLDBERG-VELAZQUEZ, JJ
Appeal from an order of the District Court of Nassau County, First District (Norman A. Sammut, J.), dated October 11, 2023. The order denied defendants' motion to vacate a judgment of that court entered July 13, 2023 upon defendants' failure to appear or answer the claim.
ORDERED that the order is affirmed, without costs.
In this small claims action, defendants appeal from an order of the District Court (Norman A. Sammut, J.), dated October 11, 2023 denying their motion to vacate a judgment of that court entered July 13, 2023 upon defendants' failure to appear at a scheduled hearing. The judgment awarded plaintiff the principal sum of $5,000 on her claim that she was entitled to a refund of payments she had made to defendants for dance classes for her son.
It is well settled that in order to vacate a default judgment based upon an excusable default, a defendant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Nationstar Mtge., LLC v McLean, 140 A.D.3d 1131, 1132 [2016]; Santiago v New York City Health & Hosps. Corp., 10 A.D.3d 393 [2004]).
Here, while the record establishes that the court's certified mailing of the summons was returned unclaimed, its first-class mailing was not "returned as undeliverable" (UDCA 1803 [a]). "If after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of [the] claim" (UDCA 1803 [a]; see Armen v Einsidler Mgt., Inc., 73 Misc.3d 136[A], 2021 NY Slip Op 51068[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Defendants' purported excuse for their default was a conclusory and unsubstantiated denial of receipt of service which did not rebut the presumption of receipt (see HSBC Bank USA, N.A. v Powell, 148 A.D.3d 1123 [2017]; Town House St., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 893, 894 [2006]). In view of the foregoing, we need not determine whether defendants had a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 A.D.3d 724 [2013]; ACT Props., LLC v Garcia, 102 A.D.3d 712 [2013]).
Accordingly, the order is affirmed.
WALSH, J.P., McCORMACK and GOLDBERG-VELAZQUEZ, JJ., concur.