| Anderson v GHI Auto Serv., Inc. |
| 2007 NY Slip Op 08395 [45 AD3d 512] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Melissa Anderson, Respondent, v GHI Auto Service, Inc.,et al., Defendants, and Maurice Mitchell, Appellant. |
—[*1] Stephen A. Weinstein, Bellport, N.Y. (Benjamin Russo of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Maurice Mitchell appealsfrom an order of the Supreme Court, Queens County (Kelly, J.), dated November 22, 2006,which, after a hearing, denied that branch of his motion which was pursuant to CPLR 5015 (a)(1) and 317 to vacate a judgment of the same court (Lonschein, J.) dated June 13, 1997, enteredupon his default in appearing or answering the complaint.
Ordered that the order is affirmed, with costs.
To vacate a judgment on the ground of excusable default pursuant to CPLR 5015 (a) (1), thedefendant Maurice Mitchell (hereinafter the defendant) was required to demonstrate both areasonable excuse for his default and the existence of a meritorious defense to the action(see CPLR 5015 [a] [1]; Taylorv Saal, 4 AD3d 467 [2004]). The defendant failed to do so.
Pursuant to CPLR 308 (2), service of process may be made, inter alia, by delivery of thesummons within the state to a person of suitable age and discretion "at the [defendant's] actualplace of business, dwelling place or usual place of abode," and by mailing the summons to thedefendant at his or her last known residence or actual place of business. The "plaintiff bears theultimate burden of proving by a preponderance of the evidence that jurisdiction over thedefendant [*2]was obtained by proper service of process"(Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]). The evidence presented bythe defendant failed to refute the plaintiff's proof that the summons was delivered to a person ofsuitable age and discretion at the defendant's place of business, and the defendant's mere denialof receipt of the summons and complaint failed to rebut the presumption of proper servicecreated by the affidavit of service (see CPLR 5015 [a] [4]; General Motors Acceptance Corp. v GradeA Auto Body, Inc., 21 AD3d 447 [2005]). Thus, proper service was made upon thedefendant pursuant to CPLR 308 (2).
In any event, relief from the defendant's default is barred under CPLR 317, wherein "Aperson served with a summons other than by personal delivery to him or to his agent for servicedesignated under rule 318, within or without the state, who does not appear may be allowed todefend the action within one year after he obtains knowledge of entry of the judgment, but in noevent more than five years after such entry, upon a finding of the court that he did not personallyreceive notice of the summons in time to defend and has a meritorious defense." Here, more thanfive years elapsed between the entry of the judgment in 1997 and the defendant's underlyingmotion in 2006. Therefore, the defendant was barred from obtaining vacatur of the defaultjudgment against him pursuant to CPLR 317 (see State of N.Y. Higher Educ. Servs. Corp. vUpshur, 252 AD2d 333, 337 [1999]). Spolzino, J.P., Santucci, Angiolillo and Dickerson, JJ.,concur.