| Valiotis v Psaroudis |
| 2010 NY Slip Op 07919 [78 AD3d 683] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Evanthia Valiotis, Respondent, v Antonios Psaroudis et al.,Defendants, and Constantino Psaroudis, Appellant. |
—[*1] Ira S. Newman, Great Neck, N.Y. (Robert W. Lewis of counsel), for respondent.
In an action, inter alia, to rescind a contract for the sale of a pushcart business, and to recoverdamages for fraudulent misrepresentation and breach of contract, the defendant Constantino Psaroudisappeals from an order of the Supreme Court, Queens County (Rosengarten, J.), dated June 28, 2010,which granted the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against himupon his default in appearing or answering the complaint, and denied his cross motion for leave to servea late answer.
Ordered that the order is affirmed, with costs.
The affidavit of the plaintiff's process server submitted in support of the plaintiff's motion pursuant toCPLR 3215 for leave to enter a default judgment against the defendant Constantino Psaroudis(hereinafter the defendant) constituted prima facie evidence of valid service upon the defendantpursuant to CPLR 308 (1) (see ProspectPark Mgt., LLC v Beatty, 73 AD3d 885, 886 [2010]; Wieck v Halpern, 255 AD2d438 [1998]). In addition, the plaintiff submitted proof of the facts constituting the claim and thedefendant's default (see CPLR 3215 [f]; Trini Realty Corp. v Fulton Ctr. LLC, 53 AD3d 479 [2008]; 599 Ralph Ave. Dev., LLC v 799 SterlingInc., 34 AD3d 726 [2006]; Lipp vPort Auth. of N.Y. & N.J., 34 AD3d 649, 650 [2006]).
In opposing the plaintiff's motion, the defendant was required to establish both a reasonable excusefor his default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1];Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Gray v B.R. Trucking Co., 59 NY2d 649, 650 [1983]; Gross v Kail, 70 AD3d 997, 998 [2010]; Miller v Ateres Shlomo, LLC, 49 AD3d612, 613 [2008]; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d at 649). The defendant'sbare and unsubstantiated denial of receipt of process was insufficient to rebut the presumption of properservice created by the affidavit of service (seeSturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009]; Beneficial Homeowner Serv. Corp. vGirault, 60 AD3d 984 [2009]; Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d732, 732-733 [2008]). Furthermore, the defendant's claim that he had a reasonable excuse for thedefault because he filed a bankruptcy petition on August 13, 2008 (see Valiotis v Psaroudis, 69 AD3d 610 [2010]), did not explain hisfailure to serve an answer before the March 31, 2008, deadline or to move to vacate his default duringthe 4½ month period between March 31, 2008, and the date he filed for bankruptcy (see [*2]Jeffersonv Netusil, 44 AD3d 621, 622 [2007]). Consequently, the Supreme Court properly found thatthe defendant failed to establish a reasonable excuse for his default. Likewise, the Supreme Courtproperly found that the defendant failed to establish that he had a potentially meritorious defense to theaction (see Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d at 985;Reilly-Whiteman, Inc. v Cherry Hill Textiles, 191 AD2d 486, 487 [1993]; Lener v ClubMed, 168 AD2d 433, 435 [1990]; Smith v Pope, 72 AD2d 913 [1979]). Accordingly,we find that the Supreme Court did not improvidently exercise its discretion in granting the plaintiff'smotion for leave to enter a default judgment against the defendant, and in denying the defendant's crossmotion for leave to serve a late answer. Fisher, J.P., Dillon, Balkin, Chambers and Sgroi, JJ., concur.