| Cohen v Romanoff |
| 2011 NY Slip Op 03537 [83 AD3d 989] |
| April 26, 2011 |
| Appellate Division, Second Department |
| David Cohen, Appellant, v Elihu Romanoff,Respondent. |
—[*1] Jack Kint, New York, N.Y. (Jack M. Kint, Jr., of counsel), for respondent.
In an action to recover on a promissory note, the plaintiff appeals from an order of theSupreme Court, Kings County (Schack, J.), entered September 25, 2009, which denied hismotion pursuant to CPLR 5015 (a) (1) to vacate an order of the same court dated July 10, 2009,granting the defendant's motion to vacate a judgment of the same court entered May 9, 1997,upon his default in appearing at a hearing on that motion.
Ordered that the order entered September 25, 2009, is reversed, on the law, with costs, theplaintiff's motion to vacate the order dated July 10, 2009, is granted, and the matter is remitted tothe Supreme Court, Kings County, for a new hearing and a new determination on the merits ofthe defendant's motion to vacate the judgment.
To prevail on his motion to vacate the order entered upon his default, the plaintiff wasrequired to demonstrate a reasonable excuse for the default and a potentially meritoriousopposition to the defendant's motion (see CPLR 5015 [a] [1]; Eugene Di Lorenzo,Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Bazoyah v Herschitz, 79 AD3d 1081, 1081-1082 [2010]; Campbell-Jarvis v Alves, 68 AD3d701, 702 [2009]; St. Rose vMcMorrow, 43 AD3d 1146 [2007]). The Supreme Court accepted the plaintiff'slaw-office failure excuse as reasonable but denied the motion to vacate the order on the basis thatthe plaintiff failed to submit any evidence demonstrating a meritorious opposition to thedefendant's motion pursuant to CPLR 5015 (a) (4) to vacate a judgment entered in 1997.Although the plaintiff failed to submit an affidavit of merit in support of his motion (cf. Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 392 [2008]), he submitted an affirmation which effectivelyincorporated by reference the documents that he previously submitted in opposition to thedefendant's motion to vacate (see Henryv Kuveke, 9 AD3d 476 [2004]; cf. Sheedy v Pataki, 236 AD2d 92, 97-98[1997]; Loeb v Tanenbaum, 124 AD2d 941, 942 [1986]). Within these submissions wasan affidavit of service which constituted prima facie evidence of proper service pursuant toCPLR 308 (4) (see Matter of Nieto,70 AD3d 831 [2010]; Argent Mtge.Co., LLC v Vlahos, 66 AD3d 721 [2009]; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845 [2008]).Moreover, in opposition to the defendant's submissions demonstrating that service was not madeat his "dwelling place or usual place of abode" (CPLR 308 [4]), the plaintiff's prior submissionscontained sufficient evidence to require a hearing of that matter (see [*2]Feinstein v Bergner, 48 NY2d 234, 239-240 [1979]; Agudo v Zhinin, 74 AD3d 712[2010]; cf. Vitello v Rizzo, 298 AD2d 452, 453 [2002]). Accordingly, as the plaintiffdemonstrated a reasonable excuse for his default and a potentially meritorious opposition to thedefendant's motion to vacate the judgment, the Supreme Court should have granted the plaintiff'smotion to vacate the order dated July 10, 2009, pursuant to CPLR 5015 (a) (1). Mastro, J.P.,Skelos, Leventhal and Roman, JJ., concur.
Motion by the respondent, in effect, to dismiss an appeal from an order of the SupremeCourt, Kings County, dated September 25, 2009, to strike stated portions of the record and theappellant's brief on the ground that they contain or refer to matter dehors the record, and to strikestated portions of the appellant's brief on the ground, in effect, that they improperly raise issuesfor the first time on appeal. By decision and order on motion dated August 11, 2010, thosebranches of the motion which were to strike stated portions of the record and the appellant's briefon the ground that they contain or refer to matter dehors the record and to strike stated portions ofthe appellant's brief on the ground, in effect, that they improperly raised issues for the first timeon appeal, were held in abeyance and were referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that those branches of the motion which were to strike stated portions of the recordand the appellant's brief on the ground that they contain or refer to matter dehors the record andto strike stated portions of the appellant's brief on the ground, in effect, that they improperlyraised issues for the first time on appeal, are denied. Mastro, J.P., Skelos, Leventhal and Roman,JJ., concur.