| Sturino v Nino Tripicchio & Son Landscaping |
| 2009 NY Slip Op 06829 [65 AD3d 1327] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Raymond Sturino, Respondent, v Nino Tripicchio & SonLandscaping et al., Appellants. |
—[*1] Donald S. Mazin, Larchmont, N.Y., for respondent.
In an action, inter alia, to recover on a promissory note, the defendants appeal from an orderof the Supreme Court, Westchester County (DiBella, J.), entered July 17, 2008, which deniedthose branches of their motion which were, in effect, pursuant to CPLR 5015 (a) (4) to vacate aclerk's judgment of the same court dated March 11, 2008, entered upon their default in appearingor answering the complaint or, in the alternative, pursuant to CPLR 317 to vacate the default ofthe defendants Nino Tripicchio & Son Landscaping and Nino Tripicchio.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying that branch of thedefendants' motion which was, in effect, pursuant to CPLR 5015 (a) (4) to vacate a clerk'sjudgment entered upon their default in appearing or answering the complaint. The processserver's affidavits of service constituted prima facie evidence of proper service pursuant to CPLR308 (4) (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983 [2008];Olesniewicz v Khan, 8 AD3d 354, 355 [2004]). The affidavit of the defendant NinoTripicchio, submitted on his behalf as well as on behalf of the defendant Nino Tripicchio & SonLandscaping (hereinafter together the Nino Tripicchio defendants), consisted of anunsubstantiated denial of service of the summons and complaint and was insufficient to rebut thepresumption of proper service (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50AD3d at 983; 96 Pierrepont v Mauro, 304 AD2d 631 [2003]). The defendant GiovanniTripicchio made no attempt to rebut the presumption of proper service, as he failed to submit anaffidavit (see Olesniewicz v Kahn, 8 AD3d at 355).
The Supreme Court providently exercised its discretion in determining that the NinoTripicchio defendants were not entitled to relief pursuant to CPLR 317. They failed todemonstrate that they did not personally receive notice of the summons and complaint in time todefend the action (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525[2008]; Caruso v Valentin, 54 AD3d 987 [2008]).
The defendants' remaining contentions either are improperly raised for the first time onappeal, are without merit, or have been rendered academic by our determination. Rivera, J.P.,Dillon, Balkin and Austin, JJ., concur.