Opinion
2011-12-27
CLOVER M. BARRETT, P.C., appellant, v. Gloria GORDON, respondent.
Clover M. Barrett, P.C., Brooklyn, N.Y., appellant pro se. Audrey A. Thomas, P.C., Rosedale, N.Y., for respondent.
Clover M. Barrett, P.C., Brooklyn, N.Y., appellant pro se. Audrey A. Thomas, P.C., Rosedale, N.Y., for respondent.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and ARIEL E. BELEN, JJ.
In an action to recover fees for legal services rendered, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated November 12, 2010, which granted the defendant's motion, in effect, to vacate an order of the same court (Spodek, J.), dated November 9, 2009, which granted the plaintiff's motion for leave to enter a default judgment against her upon her failure to appear or answer.
ORDERED that the order dated November 12, 2010, is reversed, on the law, with costs, and the defendant's motion, in effect, to vacate the order dated November 9, 2009, is denied.
The defendant's motion, in effect, to vacate an order which granted the plaintiff's motion for leave to enter a default judgment against her was made pursuant to both CPLR 5015 and CPLR 317. A defendant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action ( see Lane v. Smith, 84 A.D.3d 746, 747, 922 N.Y.S.2d 214; Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 893, 894, 815 N.Y.S.2d 281). Here, the defendant's “unsubstantiated denial of receipt of service of process did not amount to a reasonable excuse for [her] default. An unsubstantiated excuse of nonreceipt is insufficient to rebut the presumption of proper service created by an affidavit of service” ( Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d at 894, 814 N.Y.S.2d 555; see KPG Inc. v. Salinas Group Ltd., 11 A.D.3d 338, 339, 783 N.Y.S.2d 543).
While, under CPLR 317, it was unnecessary for the defendant to offer a reasonable excuse for her default ( see 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), she failed to demonstrate that she did not personally receive notice of the summons in time to defend the action ( id. at 143, 501 N.Y.S.2d 8, 492 N.E.2d 116; see Fleisher v. Kaba, 78 A.D.3d 1118, 1119, 912 N.Y.S.2d 604). The plaintiff's evidence demonstrating that multiple copies of process were mailed to the defendant at her correct residential address created a presumption of proper mailing and of receipt, and the defendant's mere denial of receipt, without more, was insufficient to rebut that presumption ( see C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 786, 912 N.Y.S.2d 428; Deutsche Bank Natl. Trust Co. v. Matos, 77 A.D.3d 606, 607, 908 N.Y.S.2d 732; Truscello v. Olympia Constr., 294 A.D.2d 350, 351, 741 N.Y.S.2d 709).
Accordingly, the Supreme Court erred in granting the defendant's motion, in effect, to vacate the order dated November 9, 2009.