| Jefferson v Netusil |
| 2007 NY Slip Op 07403 [44 AD3d 621] |
| October 2, 2007 |
| Appellate Division, Second Department |
| LaTonya Jefferson, Appellant, v William Netusil,Respondent. |
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In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Spinola, J.), dated August 15, 2006, which granted thedefendant's motion, in effect, to vacate an order of the same court dated February 27, 2006,granting the plaintiff's motion for leave to enter a judgment against the defendant on the issue ofliability upon his failure to appear or to answer the complaint, and to deem the answer filed andserved.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, thedefendant's motion, in effect, to vacate the order dated February 27, 2006, and to deem theanswer filed and served is denied, and the order dated February 27, 2006, is reinstated.
The process server's affidavit was sufficient to establish that process was properly servedpursuant to CPLR 308 (2) (see Granite Mgt. & Disposition v Sun, 221 AD2d 186,186-187 [1995]). Therefore, in support of his motion pursuant to CPLR 5015 (a) (1) to vacate hisdefault in appearing or in answering the complaint, the defendant was required to demonstrateboth a reasonable excuse for his default and a meritorious defense (see CPLR 5015 [a][1]; Jaffery v MacMillan & WebbEnters., Inc., 27 AD3d 422, 423 [2006]; Harkless v Reid, 23 AD3d 622, 622-623 [2005]; Kaufman & Satran v Sidbern Estates, 4AD3d 454 [2004]). The defendant's bare claim that service was ineffective pursuant toCPLR 308 (2) although he admitted that he received the summons and complaint by mail onSeptember 17, 2005 was insufficient to rebut the presumption of proper service created by theaffidavit of service, which stated that the summons and complaint were delivered to a person ofsuitable age and discretion at the defendant's residence on September 10, 2005 and mailed to the[*2]same address on September 16, 2005 (see Koyenov v Twin-D Transp., Inc.,33 AD3d 967, 968-969 [2006]; General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d447 [2005]; Greenpoint Sav. Bank v Aponte, 238 AD2d 376, 377 [1997]).Therefore, no hearing was required (seeKelley v Chavez, 33 AD3d 590 [2006]). Since this initial service was valid, thedefendant's time to answer commenced on October 3, 2005, 10 days after service pursuant toCPLR 308 (2) was completed on September 23, 2005 (see Greenpoint Sav. Bank vAponte, 238 AD2d 376 [1997]). However, the defendant gave no excuse for his initialthree-month delay in answering.
Furthermore, even if the defendant's motion were deemed to be a motion pursuant to CPLR317, the defendant failed to demonstrate that he did not personally receive notice of the summonsin time to defend (see Truscello v Olympia Constr., 294 AD2d 350, 351 [2002]; DeLa Barrera v Handler, 290 AD2d 476, 477 [2002]; Schiller v Sun Rock Bldg. Corp.,260 AD2d 566 [1999]; cf. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d138, 143 [1986]).
Finally, to obtain relief under CPLR 317 or 5015, the defendant was required to establish thathe had a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr.Co., 67 NY2d 138, 143 [1986]; Udell v Alcamo Supply & Contr. Corp., 275 AD2d453 [2000]). The defendant failed to demonstrate that this action was barred by the statute oflimitations (see CPLR 203 [a], [c]; 214 [6]; 304; McCoy v Feinman, 99 NY2d295, 301 [2002]; Amodeo v Kolodny, P.C., 35 AD3d 773 [2006]; Kerbein v Hutchison, 30 AD3d730, 732 [2006]; Zorn vGilbert, 27 AD3d 731 [2006]). In addition, the defendant's unverified answer wasinsufficient to demonstrate a potentially meritorious defense (see CPLR 3021; Bekker v Fleischman, 35 AD3d334 [2006]; Swart v Lehmann, 39 AD2d 807 [1972]), and the defendant's allegationsregarding a meritorious defense were improperly asserted for the first time by the defendant'sreply affidavit on the motion (seeNational Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538 [2005]; Hoyte v Epstein, 12 AD3d 487[2004]; Jackson-Cutler v Long, 2AD3d 590 [2003]). Accordingly, the Supreme Court improvidently exercised its discretionin granting the defendant's motion. Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.