Opinion
2002-04043
Submitted May 5, 2003.
May 27, 2003.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Held, J.), dated April 9, 2002, which denied their motion, inter alia, to vacate their default in serving opposition papers to the defendant's motion to dismiss the complaint for lack of personal jurisdiction.
Paul C. Matthews, New York, N.Y. (Barbara Matthews of counsel), for appellants.
DeOrchis Partners, LLP, New York, N.Y. (Joseph J. Perrone and John K. Fulweiler of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the plaintiffs motion, inter alia, to vacate their default in serving opposition papers to the defendant's motion to dismiss the complaint for lack of personal jurisdiction. The plaintiffs failed to demonstrate a reasonable excuse for their default. Although the plaintiffs' attorney claimed that he did not receive a copy of the defendant's motion papers, his unsubstantiated excuse of non-receipt was insufficient to rebut the proof that the motion papers were properly mailed and the presumption of receipt (see Matter of Aetna Life Cas. Co. v. Walker, 255 A.D.2d 381; Orlando v. Corning Inc., 213 A.D.2d 464; Jeraci v. Froehlich, 129 A.D.2d 557).
In addition, the plaintiffs failed to demonstrate either the existence of good cause or that the interest of justice would be served by permitting late service of the complaint (see Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95).
ALTMAN, J.P., McGINITY, LUCIANO and H. MILLER, JJ., concur.