| US Consults v APG, Inc. |
| 2011 NY Slip Op 01648 [82 AD3d 753] |
| March 1, 2011 |
| Appellate Division, Second Department |
| US Consults, Appellant, v APG, Inc., Respondent, et al.,Defendants. |
—[*1] Kirkland & Ellis LLP, New York, N.Y. (Michael D. Reisman of counsel), forrespondent.
In an action to recover damages for breach of contract, the plaintiff appeals from so much ofan order of the Supreme Court, Suffolk County (Molia, J.), dated March 3, 2009, as granted thosebranches of the motion of the defendant APG, Inc., which were to vacate its default in appearingand answering the complaint, and for leave to interpose an answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the motion of the defendant APG, Inc., which were to vacate its default in appearingand answering the complaint, and for leave to interpose an answer, are denied.
In order to vacate its default in appearing and answering the complaint, the defendant APG,Inc. (hereinafter APG), was required to demonstrate a reasonable excuse for its failure to appearor answer and a potentially meritorious defense (see CPLR 5015 [a] [1]; Hageman v Home Depot USA, Inc., 25AD3d 760, 761 [2006]; Fekete vCamp Skwere, 16 AD3d 544, 545 [2005]). APG failed to offer a reasonable excuse forits default. It claims that its default was excusable because it was not properly served. However,the plaintiff produced an affidavit of service of the process server who allegedly served APGwith a summons and complaint. The affidavit of service constituted prima facie evidence thatAPG was validly served pursuant to CPLR 308 (2) (see Bank of N.Y. v Segui, 68 AD3d 908 [2009]; Wells Fargo Bank, NA v Chaplin, 65AD3d 588, 589 [2009]; CavalryPortfolio Servs., LLC v Reisman, 55 AD3d 524 [2008]). In response, APG offered onlybare and unsubstantiated denials, which were insufficient to rebut the presumption of properservice (see Sturino v Nino Tripicchio &Son Landscaping, 65 AD3d 1327 [2009]; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009];Hamlet on Olde Oyster BayHomeowners Assn., Inc. v Ellner, 57 AD3d 732 [2008]). Accordingly, the SupremeCourt should have denied those branches of APG's motion which were, inter alia, to vacate itsdefault.
In light of our determination, we need not reach the issue of whether APG proffered apotentially meritorious defense to the action. Angiolillo, J.P., Florio, Belen and Austin, JJ.,concur.