Opinion
2001-05540
Submitted March 19, 2002.
May 8, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated April 27, 2001, which denied its motion to vacate a judgment of the same court (Slavin, JHO), entered October 12, 2000, in favor of the plaintiffs and against it in the principal sum of $150,000, upon its default in answering the complaint.
Michael M. Premisler, Carle Place, N.Y., for appellant.
Richard P. Neimark Associates, LLP (Carol R. Finocchio, New York, N.Y. [Marie R. Hodukavich] of counsel), for respondents.
Before: PRUDENTI, P.J., FEUERSTEIN, FRIEDMANN, MILLER, JJ.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the defendant's motion to vacate its default under CPLR 317 and CPLR 5015(a)(1). With regard to the application for relief under CPLR 317, the defendant failed to demonstrate that it did not receive actual notice of the summons in time to defend. Mere denials of receipt are insufficient to rebut the presumption of proper service created by an affidavit of service (see De La Barrera v. Handler, 290 A.D.2d 476; [2002]; Udell v. Alcamo Supply Contr. Corp., 275 A.D.2d 453; Facey v. Heyward, 244 A.D.2d 452). Denial of the application for relief pursuant to CPLR 5015(a)(1) also was proper since the defendant failed to proffer a reasonable excuse for its default (see Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138; De La Barrera v. Handler, supra; Schiller v. Sun Rock Bldg. Corp., 260 A.D.2d 566).
Motion by the respondents on an appeal from an order of the Supreme Court, Kings County, dated April 27, 2001, to strike certain material from the appellant's brief and appendix on the ground that they contain or refer to matter dehors the record. By decision and order of this court, dated February 22, 2002, the motion was held in abeyance and was referred to the Justices hearing the appeal for determination upon the submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the motion is granted to the extent that the matter contained on page 6 and pages 29 through 57 of the appendix, relating to an order dated August 22, 2001, and all references thereto contained in the appellant's brief, are stricken, and have not been considered on this appeal.
PRUDENTI, P.J., FEUERSTEIN, FRIEDMANN and H. MILLER, JJ., concur.