| Matter of Nieto |
| 2010 NY Slip Op 00966 [70 AD3d 831] |
| February 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Richard Nieto, Deceased. DeborahPerciballi et al., Respondents; Michele April, Appellant. |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Peter K. Kelly, Adam J. Gottlieb, andJennifer F. Hillman of counsel), for respondents.
In a probate proceeding in which Deborah Perciballi and Louis Nieto, Jr., co-executors of theestate of Richard Nieto, petitioned pursuant to SCPA 2103 to recover certain personal property,Michele April appeals from an order of the Surrogate's Court, Suffolk County (Czygier, Jr., S.),dated January 22, 2009, which denied her motion pursuant to CPLR 5015 (a) to vacate an orderof the same court entered August 4, 2008, upon her default in answering the petition and after aninquest, inter alia, granting the petition to the extent of directing her to turn over certain personalproperty to the petitioners.
Ordered that the order is affirmed, with costs.
This proceeding pursuant to SCPA 2103 was commenced by an order to show cause datedNovember 21, 2007, directing that service of process be made on the appellant by special mailservice pursuant to SCPA 307 (2) and by delivery personally to Randazzo & Randazzo, LLP, theappellant's former counsel. In opposition to that branch of the appellant's motion which waspursuant to CPLR 5015 (a) (4) to vacate the order entered upon her default, the petitionerssubmitted their process server's affidavit of service together with the Express Mail track andconfirm record of the United States Postal Service to show that process was mailed to theappellant by special mail service pursuant to SCPA 307 (2) (see SCPA 103 [37-a];Matter of Worms, 174 Misc 2d 923, 924 [1997]). In addition, the petitioners submittedtheir process server's affidavit of service to show that the process was delivered personally toRandazzo & Randazzo, LLP (see CPLR 310-a). The evidence presented by thepetitioners constituted prima facie evidence of proper service of process upon the appellant incompliance with the order to show cause (see Argent Mtge. Co., LLC v Vlahos, 66 AD3d 721 [2009]; 425 E. 26th St. Owners Corp. vBeaton, 50 AD3d 845, 846 [2008]; Olesniewicz v Khan, 8 AD3d 354, 355 [2004]). The appellant'sbare denial of service was insufficient to rebut the prima facie proof of proper service (see425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846; Simonds v Grobman, 277AD2d 369, 370 [2000]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]). Contrary tothe appellant's contention, the method of service prescribed in the order to show cause was onereasonably calculated, under all the circumstances, to apprise the appellant of the pendency ofthe proceeding (see Bossuk v Steinberg, 58 NY2d 916, 918-919 [1983]). Accordingly,the Surrogate's Court [*2]properly denied that branch of theappellant's motion which was pursuant to CPLR 5015 (a) (4) to vacate the prior order based onlack of jurisdiction to render that order.
Furthermore, the Supreme Court providently exercised its discretion in denying that branchof the appellant's motion which was pursuant to CPLR 5015 (a) (1) to vacate the prior orderbased on excusable default. To vacate the order entered upon her default in answering thepetition pursuant to CPLR 5015 (a) (1), the appellant was required to demonstrate a reasonableexcuse for her default and a meritorious defense to the petition (see Matter of Olds v Binyard, 64AD3d 658, 659 [2009]; Matter ofTerrito v Keane, 55 AD3d 744, 745 [2008]; Matter of Tobin, 261 AD2d 627,628 [1999]). The appellant's bare allegation that she believed that her former counsel and aFlorida attorney were representing her interests is belied by the record (see Moore vClaudio, 224 AD2d 502, 503 [1996]). Furthermore, under the circumstances, her bare andunsupported claim that she was unable to afford an attorney was insufficient to excuse the morethan eight-month delay in answering the petition (see CPLR 320 [a]; SCPA 309 [2] [b];Dorrer v Berry, 37 AD3d 519,520 [2007]; Gerlin v Homann Trucking, 303 AD2d 262 [2003]; Kanat vOchsner, 301 AD2d 456, 457-458 [2003]; Rottenberg v Lerner, 232 AD2d 395[1996]).
The appellant's remaining contention is without merit. Dillon, J.P., Miller, Eng and Hall, JJ.,concur.