| Pezolano v Incorporated City of Glen Cove |
| 2010 NY Slip Op 02528 [71 AD3d 970] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Philip T. Pezolano et al., Respondents, v Incorporated Cityof Glen Cove, Defendant, and Willibe Wilson, Appellant. |
—[*1] Mitchell Dranow, Mineola, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendant Willibe Wilsonappeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered April 30,2009, which denied his motion to vacate a judgment of the same court entered June 11, 2008,which, upon an order entered February 13, 2007, granting the plaintiffs' unopposed motion forleave to enter judgment on the issue of liability upon his default in appearing or answering thecomplaint, and after an inquest on the issue of damages, was in favor of the plaintiffs and againsthim in the principal sum of $232,000.
Ordered that the order entered April 30, 2009, is affirmed, with costs.
In moving pursuant to CPLR 5015 (a) (1) to vacate the judgment entered against him, theappellant claimed that he was not served with the summons and complaint (see CPLR5015 [a] [4]; Roberts v Anka, 45 AD3d 752, 753 [2007]; Marable v Williams,278 AD2d 459 [2000]; Taylor v Jones, 172 AD2d 745, 746 [1991]). However, theappellant's unsubstantiated denial of service was insufficient to rebut the presumption of properservice pursuant to CPLR 308 (2) created by the affidavit of service and other evidence in therecord (see Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009];Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009]; Hamlet on OldeOyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d 732, 733 [2008]; Sime vLudhar, 37 AD3d 817, 817-818 [2007]). Furthermore, the appellant did not swear to anyspecific facts that would rebut the statements in the process server's affidavit that the summonsand complaint were delivered to a person of suitable age and discretion at the appellant'sdwelling house or usual place of abode and mailed to the same address (see Sturino v NinoTripicchio & Son Landscaping, 65 AD3d at 1327, 1328; Silverman v Deutsch, 283AD2d 478, 479 [2001]). The appellant offered no other excuse for his default in answering thecomplaint (see CPLR 5015 [a] [1]). Accordingly, the Supreme Court properly denied theappellant's motion to vacate the judgment entered against him. Fisher, J.P., Covello, Balkin,Leventhal and Lott, JJ., concur.