| Malik v Noe |
| 2008 NY Slip Op 06809 [54 AD3d 733] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Mohammad Malik, Respondent, v Aharon Noe,Appellant. |
—[*1] Horing Welikson & Rosen, P.C., Williston Park, N.Y. (Richard T. Walsh of counsel), forrespondent.
In an action to recover on a promissory note brought by motion for summary judgment inlieu of complaint pursuant to CPLR 3213, the defendant appeals, as limited by his brief, from somuch of an order of the Supreme Court, Queens County (Grays, J.), dated March 12, 2007, asdenied his cross motion pursuant to CPLR 317 and 5015 to vacate a judgment of the same court(LaTorella, J.), dated February 26, 2002, entered in favor of the plaintiff and against him in theprincipal sum of $100,000, upon his default in appearing and opposing the plaintiff's motion forsummary judgment in lieu of complaint, and pursuant to CPLR 5021 (a) (2) to direct the CountyClerk to enter a partial satisfaction of the judgment.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's cross motion which was to direct the County Clerk to enter a partialsatisfaction of the judgment; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County,for a hearing to determine whether the judgment was partially satisfied and thereafter for a newdetermination of that branch of the defendant's cross motion.
The defendant concedes that he executed a promissory note in favor of the plaintiff,Mohammad Malik, in the sum of $100,000 and failed to make timely payments. The plaintiffserved the defendant pursuant to CPLR 308 (4) with a summons and motion for summaryjudgment in lieu [*2]of a complaint, which was granted on defaultin February 2002. The defendant admits that he became aware of the default judgment sometimein late 2003 or early 2004. However, he did not cross-move, inter alia, to vacate the defaultjudgment until November 2006. Contending that he made payments toward the note, thedefendant also cross-moved to direct the County Clerk to enter a partial satisfaction of thejudgment for the payments made. The plaintiff admitted receiving the payments, but denied thatthey were made in partial satisfaction of the note.
The branch of the defendant's cross motion which was pursuant to CPLR 317 and 5015 tovacate the default judgment was properly denied as it was not made within one year of learningof the default judgment or within one year of service of a copy of the default judgment withnotice of entry (see CPLR 317, 5015 [a] [1]). The court providently exercised itsdiscretion in not extending this time in light of the defendant's failure to timely move or offer areasonable excuse for failing to do so (see Allen v Preston, 123 AD2d 303 [1986];Town of Greenburgh v Schroer, 55 AD2d 602 [1976]; Levine v Berlin, 46 AD2d902 [1974]).
Moreover, the defendant failed to demonstrate that he did not receive actual notice in time todefend, as required by CPLR 317. A mere denial of receipt is insufficient to rebut thepresumption of proper service created by a properly executed affidavit of service (see De LaBarrera v Handler, 290 AD2d 476 [2002]; Udell v Alcamo Supply & Contr. Corp.,275 AD2d 453 [2000]). The defendant also failed to establish a meritorious defense to the action(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; Jefferson v Netusil, 44 AD3d 621[2007]).
A motion pursuant to CPLR 5021 (a) (2) may only be granted upon a showing that all or partof the judgment has been satisfied (seeBeal v Beal, 31 AD3d 472 [2006]; Matter of Quiggle v Quiggle, 144 AD2d1011 [1988]). In view of the conflicting documentary evidence, an evidentiary hearing shouldhave been held to determine whether the payments made by the defendant were partial paymentson the note. Accordingly, we remit the matter to the Supreme Court, Queens County, for ahearing on this issue and thereafter a new determination on that branch of the defendant's crossmotion which was to direct the County Clerk to enter a partial satisfaction of the judgment.Mastro, J.P., Dillon, Eng and Belen, JJ., concur.