Opinion
Nos. 2561, 2561A.
January 17, 2008.
Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered February 13, 2007, awarding third-party plaintiff the principal sum of $10,000, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 9, 2007, which granted third-party plaintiff's motion for default judgment and denied third-party defendant's cross motion to vacate the default, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Nesenoff Miltenberg, LLP, New York (Philip A. Byler of counsel), for appellant.
Zeichner Ellman Krause LLP, New York (Barry J. Glickman of counsel), for respondent.
Before: Mazzarelli, J.P., Andrias, Catterson and McGuire, JJ.
The judgment was based on a prior settlement that had resolved issues of unjust enrichment and implied indemnity ( see McDermott v City of New York, 50 NY2d 211, 217). While third-party defendant contends that this was error, we need not reach this issue as third-party defendant was unable to demonstrate a reasonable excuse for his multiple and acknowledged defaults ( Hyundai Corp. v Republic of Iraq, 20 AD3d 56, 62, appeal dismissed 5 NY3d 783 [2005]). Mere denial of service would not rebut the presumption of proper service created by a properly executed affidavit of service ( De La Barrera v Handler, 290 AD2d 476, 477; Fairmount Funding v Stefansky, 235 AD2d 213).