Summary
holding that in order to vacate a default, a reasonable excuse and potentially meritorious defense must be demonstrated
Summary of this case from Briskin v. ThomasOpinion
2012-06-27
Alexander REICH, respondent, v. Dwight REDLEY, appellant, et al., defendants.
Law Offices of Morris Fateha, P.C., Brooklyn, N.Y., for appellant. Solomon Rosengarten, Brooklyn, N.Y., for respondent.
Law Offices of Morris Fateha, P.C., Brooklyn, N.Y., for appellant. Solomon Rosengarten, Brooklyn, N.Y., for respondent.
WILLIAM F. MASTRO, A.P.J., RUTH C. BALKIN, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In an action to foreclose a mortgage, the defendant Dwight Redley appeals (1) from an order of the Supreme Court, Kings County (Steinhardt, J.), dated December 9, 2009, which denied his motion to vacate his default in appearing or answering the complaint, and (2), as limited by his brief, from so much of an order of the same court dated August 20, 2010, as denied that branch of his motion which was for leave to renew his prior motion to vacate.
ORDERED that the order dated December 9, 2009, is affirmed; and it is further,
ORDERED that the order dated August 20, 2010, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The Supreme Court properly denied the motion of the defendant Dwight Redley to vacate his default in appearing or answering the complaint. Insofar as Redley moved to vacate his default pursuant to CPLR 5015(a)(4) for lack of jurisdiction, the affidavit of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 308(1) ( see Tribeca Lending Corp. v. Crawford, 79 A.D.3d 1018, 1019, 916 N.Y.S.2d 116;Matter of Perskin v. Bassaragh, 73 A.D.3d 1073, 899 N.Y.S.2d 901;Scarano v. Scarano, 63 A.D.3d 716, 880 N.Y.S.2d 682). Redley's bare and unsubstantiated denial of service in this case was insufficient to rebut the presumption of proper service created by the plaintiff's duly executed affidavit of service ( see Citimortgage, Inc. v. Phillips, 82 A.D.3d 1032, 918 N.Y.S.2d 893;Valiotis v. Psaroudis, 78 A.D.3d 683, 911 N.Y.S.2d 111;Prospect Park Mgt., LLC v. Beatty, 73 A.D.3d 885, 900 N.Y.S.2d 433;Pezolano v. Incorporated City of Glen Cove, 71 A.D.3d 970, 971, 896 N.Y.S.2d 685; Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625;European Am. Bank v. Abramoff, 201 A.D.2d 611, 608 N.Y.S.2d 233). Moreover, insofar as Redley moved also to vacate his default pursuant to CPLR 5015(a)(1) by demonstrating a reasonable excuse for the default and a potentially meritorious defense ( 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), he “failed to establish a reasonable excuse for his default since the only excuse he proffered was that he was not served with process” ( Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 221, 927 N.Y.S.2d 349;see Pezolano v. Incorporated City of Glen Cove, 71 A.D.3d at 971, 896 N.Y.S.2d 685). As Redley failed to offer a reasonable excuse, “it is unnecessary to consider whether [he] sufficiently demonstrated the existence of a potentially meritorious defense” ( Lane v. Smith, 84 A.D.3d 746, 748, 922 N.Y.S.2d 214).
The Supreme Court also properly denied that branch of Redley's motion which was for leave to renew his motion to vacate his default in appearing or answering, as he failed to offer a reasonable justification for his failure to submit the purported new facts at the time of the prior motion ( seeCPLR 2221[e][3]; Mount Sinai Hosp. v. Country Wide Ins. Co., 85 A.D.3d 1136, 1138, 926 N.Y.S.2d 306;Jordan v. Yardeny, 84 A.D.3d 1172, 1173, 923 N.Y.S.2d 358;Zito v. Jastremski, 84 A.D.3d 1069, 1071, 925 N.Y.S.2d 91). In any event, the new facts would not have changed the prior determination ( seeCPLR 2221[e][2]; Davidoff v. East 13th St. Tifereth Place, LLC, 84 A.D.3d 1302, 1303, 923 N.Y.S.2d 886;Jordan v. Yardeny, 84 A.D.3d at 1173, 923 N.Y.S.2d 358;Zito v. Jastremski, 84 A.D.3d at 1071, 925 N.Y.S.2d 91).