Opinion
March 19, 1984
In an action, inter alia, to recover damages for breach of contract, defendants appeal from an order of the Supreme Court, Rockland County (Kelly, J.), entered January 12, 1983, which denied their motion to vacate a default judgment which had been entered against them upon their failure to interpose a timely answer. ¶ Order reversed, without costs or disbursements, and matter remitted to the Supreme Court, Rockland County, for a hearing before a different Judge and a new determination in accordance herewith. The default judgment shall stand as security pending the determination at Special Term. ¶ Plaintiff commenced the instant action by service of a summons with notice but no complaint. The defendants thereafter appeared and demanded a complaint, whereupon the plaintiff's attorneys allegedly served a complaint, by mail, upon the defendants' attorney on or about June 3, 1982. When no answer was forthcoming, the plaintiff entered a default judgment against the defendants on August 30, 1982, which the latter then sought to vacate shortly after learning of its existence. ¶ In explanation of their failure to interpose a timely answer, defendants' attorney averred, inter alia, that he runs a small law office with only one associate and one secretary; that all of the mail comes across his desk; and that "[a]t no time did [he] receive a complaint in this matter, nor * * * any other communication requesting an answer or any other notice that the plaintiff's attorneys were going to take a default". However, as evidence that a complaint had, in fact, been served, the plaintiff produced an affidavit of service by mail. ¶ It is well established that the "[s]ervice of papers by mail is deemed complete upon deposit of such papers in the mail and [that] such manner of service creates a presumption of proper mailing to the addressee * * * The burden then falls upon the addressee to present evidence sufficient to overcome the presumption and establish nonreceipt" ( Vita v Heller, 97 A.D.2d 464). In the case at bar, counsel's affidavit was legally sufficient to overcome the presumption, and since the nonreceipt of a pleading will adequately excuse the failure to timely respond thereto (at least where the party is not otherwise aware of the paper's existence and contents) (see Vita v Heller, supra, concurring mem. of Gibbons, J.; Swidler v World-Wide Volkswagen Corp., 85 A.D.2d 239), the defendants are entitled to a hearing at which it may be established that the instant complaint was, in fact, never received (see Vita v Heller, supra). ¶ Engel v Lichterman ( 95 A.D.2d 536) is distinguishable on its facts and does not compel a contrary result. ¶ Assuming, arguendo, that the defendants are ultimately successful in establishing a reasonable excuse for their failure to answer, the motion papers are otherwise sufficient to warrant the vacatur of the underlying default judgment (see Sorgie v Dalton, 90 A.D.2d 790, app. dsmd. 58 N.Y.2d 968; Fischer v Town of Clarkstown, 86 A.D.2d 650; Weiner Furniture Co. v Dolphin Equip. Leasing Corp., 67 A.D.2d 755; see, also, Callahan Hydraulics v Mechanical Man Car Wash Mfg. Co., 43 A.D.2d 896; cf Hilldun Corp. v Scarboro Textiles, 73 A.D.2d 535). Gibbons, J.P., Bracken, Weinstein and Lawrence, JJ., concur.