| Owens v Freeman |
| 2009 NY Slip Op 06099 [65 AD3d 731] |
| August 6, 2009 |
| Appellate Division, Third Department |
| Michael Owens et al., Doing Business as Classic Entertainment,Respondents, v Isaac Freeman, Also Known as Fatman Scoop,Appellant. |
—[*1] Duncan & Duncan, Albany (Sara A. Duncan of counsel), for respondents.
Rose, J. Appeal from an order of the Supreme Court (Platkin, J.), entered November 20,2008 in Albany County, which denied defendant's motion to vacate a default judgment enteredagainst him.
Plaintiffs commenced this action to recover damages for defendant's breach of contract, butwere unable to serve the summons and complaint until 130 days later, when process was servedpursuant to CPLR 308 (2) at defendant's last known address in New Jersey. Approximately onemonth later, after defendant failed to appear in the action, plaintiffs moved ex parte for a nuncpro tunc extension of the time for service. Supreme Court granted the motion, thereby makingthe service of process timely. Plaintiffs then moved for a default judgment, and Supreme Courtgranted plaintiffs' motion and set a date for an inquest. Notice of the default judgment andscheduled inquest was sent to defendant's last known address in New Jersey and, upon his failureto appear, the court accepted plaintiffs' written proof and granted a judgment for $51,075. Twomonths later, defendant moved to vacate the default judgment pursuant to CPLR 317 and 5015(a) (1) and (4) on the grounds that he is not subject to the court's jurisdiction and he has ameritorious defense. Supreme Court denied his motion, and defendant now appeals.[*2]
Initially, defendant argues that Supreme Court lackedjurisdiction to enter the default judgment because service of process was not made within the120-day period provided in CPLR 306-b and the court erred in extending the time for servicewithout notice to him. We note, however, that defendant has not moved to vacate the ex parteorder (see Cascioli v Gonzalez, 173 AD2d 1064 [1991]) or requested leave to appeal(see CPLR 5701 [c]), and we decline to deem his notice of appeal to be an applicationfor leave to appeal because he has not alleged that plaintiffs lacked good cause for the extensionor that he was prejudiced by the delay in the service of process (see Przespolewski v ElderWood HealthCare at Linwood, 55 AD3d 1327, 1328 [2008]).
Turning to defendant's contention that he is not subject to jurisdiction in New York under itslong-arm statute, we note that personal jurisdiction may be obtained over a nondomiciliary "whoin person or through an agent . . . transacts any business within the state orcontracts anywhere to supply goods or services in the state" (CPLR 302 [a] [1]). Here, plaintiffsalleged that defendant had transacted business in New York through an agent by entering into acontract with plaintiffs for a musical performance in Canada. Inasmuch as plaintiffs establishedthat defendant's agent engaged in purposeful activities in New York for defendant's benefit bynegotiating material terms of the contract here, we agree with Supreme Court that there waslong-arm jurisdiction (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; Polansky v Gelrod, 20 AD3d 663,664 [2005]).
The record also supports Supreme Court's finding that defendant failed to sufficientlydispute service of process. The process server's affidavit indicated that service had been made bydelivery of the summons and complaint to defendant's wife at their usual place of abode and bymailing to that address. This constituted prima facie evidence of proper service. Defendant'suncorroborated denial of receipt of the papers and his wife's statement that she merely did notrecall receiving any papers were insufficient to dispute the veracity or content of the server'saffidavit (see Kurlander v Willie,45 AD3d 1006, 1007 [2007]; Sando Realty Corp. v Aris, 209 AD2d 682, 682[1994]). Inasmuch as defendant offers no other excuse for his default, Supreme Court did not errin denying his motion to vacate the default judgment based upon lack of personal jurisdiction(see CPLR 5015 [a] [4]). Defendant's remaining arguments have been reviewed andfound to be without merit.
Cardona, P.J., Kane, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,with costs.