| C&H Import & Export, Inc. v MNA Global, Inc. |
| 2010 NY Slip Op 09205 [79 AD3d 784] |
| December 14, 2010 |
| Appellate Division, Second Department |
| C&H Import & Export, Inc., Respondent, v MNA Global, Inc.,et al., Appellants, et al., Defendant. |
—[*1] Goetz Fitzpatrick, LLP, New York, N.Y. (Bernard Kobroff of counsel), for respondent.
In an action, inter alia, to recover damages for breach of fiduciary duty, for an accounting, andinjunctive relief, the defendants MNA Global, Inc., and Menashe Amitay appeal, as limited by theirnotice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Spodek,J.), dated March 27, 2009, as granted the plaintiff's motion for leave to enter a default judgment againstthem upon their failure to appear or answer the complaint and denied those branches of their crossmotion which were, in effect, to vacate their default and for leave to serve a late answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff demonstrated its entitlement to a default judgment against the appellants, MNA Global,Inc. (hereinafter MNA), and Menashe Amitay, an officer of MNA, by submitting proof of service of thesummons and complaint, proof of the facts constituting its claim, and proof of the appellants' defaults inanswering or appearing (see CPLR 3215 [f]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102[2009]). In opposition to the plaintiff's motion, the appellants alleged that the Supreme Court lackedpersonal jurisdiction over them (see CPLR 5015 [a] [4]). The process server's affidavits ofservice constituted prima facie evidence of proper service upon Amitay pursuant to CPLR 308 (2) andupon MNA pursuant to CPLR 311 (a) (1) (see Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009];McIntyre v Emanuel Church of God InChrist, Inc., 37 AD3d 562 [2007]). The unsubstantiated denials by Amitay that neither he norMNA were served with the summons and complaint were insufficient to rebut the presumption ofproper service (see Pezolano v IncorporatedCity of Glen Cove, 71 AD3d 970 [2010]; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009];Sime v Ludhar, 37 AD3d 817[2007]). Notably, Amitay failed to submit any affidavit by the person upon whom process was allegedlyserved pursuant to CPLR 308 (2) denying receipt of the summons and complaint (see Roberts v Anka, 45 AD3d 752,754 [2007]; Foster v Jordan, 269 AD2d 152 [2000]; cf. Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d536, 538 [2006]). Furthermore, Amitay did not deny that the individual described in the affidavitwith respect to service of MNA was a managing agent of MNA (see SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604 [2007];Ralph DiMaio Woodworking Co. v Ameribuild Constr. Mgt., 300 AD2d 558 [2002]). Theappellants offered no other excuse for their defaults in answering the complaint (see CPLR5015 [a] [1]).[*2]
Even if that branch of the appellants' cross motion whichsought, in effect, to vacate their default was treated as one made pursuant to CPLR 317 (seeEugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143 [1986]; Irwin Mtge. Corp. v Devis, 72 AD3d743 [2010]; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497[1992]), the appellants failed to demonstrate that they did not receive notice of the summons andcomplaint in time to defend the action (seeIrwin Mtge. Corp. v Devis, 72 AD3d 743 [2010]; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009]).The plaintiff's evidence that a copy of the summons and complaint was mailed to Amitay's correctresidence address created a presumption of proper mailing and of receipt (see Engel vLichterman, 62 NY2d 943 [1984]; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524 [2008]). Hismere denial of receipt, without more, did not rebut the presumption of proper mailing (see CavalryPortfolio Servs., LLC v Reisman, 55 AD3d at 525; De La Barrera v Handler, 290 AD2d476 [2002]; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453 [2000]).
The Supreme Court also properly denied that branch of the appellants' cross motion which sought,in effect, an extension of time to serve a late answer pursuant to CPLR 3012 (d), as they did notestablish a reasonable excuse for their failure to timely serve an answer (see 599 Ralph Ave. Dev., LLC v 799 SterlingInc., 34 AD3d 726 [2006]; Elite Limousine Plus v Allcity Ins. Co., 266 AD2d 259[1999]).
Accordingly, the Supreme Court properly granted the plaintiff's motion for leave to enter a defaultjudgment against the appellants and properly denied those branches of the appellants' cross motionwhich were, in effect, to vacate their default and for leave to serve a late answer. Mastro, J.P., Florio,Dickerson, Belen and Lott, JJ., concur.