| Dayco Mech. Servs., Inc. v Toscani |
| 2012 NY Slip Op 02554 [94 AD3d 1214] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Dayco Mechanical Services, Inc., Respondent, v DinoToscani et al., Defendants, and 119 Main Street, LLC, et al.,Appellants. |
—[*1] Blatchly & Simonson, P.C., New Paltz (Jon A. Simonson of counsel), forrespondent.
Mercure, A.P.J. Appeal from an order of the Supreme Court (Melkonian, J.), entered January21, 2011 in Ulster County, which, among other things, granted plaintiff's motion for a defaultjudgment against certain defendants.
In 2003 and 2004, plaintiff installed various cooling and refrigeration equipment inproperties located at 115-121 Main Street and 127 Main Street in the City of New Paltz, UlsterCounty. In 2009, after receiving only partial payment for services rendered, plaintiff commencedthis action for breach of contract, account stated and unjust enrichment. Defendant Dino Toscani,who had originally contacted plaintiff about performing the work, filed an answer, but the threeremaining defendants—Toscani and Sons, Inc., 119 Main Street, LLC (owner of theproperty located at 115-121 Main Street), and 127 Main Street, LLC (owner of the property atthat location)—failed to appear. Plaintiff then moved for a default judgment against thosethree defendants. 119 Main Street, LLC and 127 Main Street, LLC (hereinafter collectivelyreferred to as the Main Street defendants) opposed the motion and cross-moved for leave to file alate answer. Supreme Court denied the cross motion, and granted plaintiff's motion for a default[*2]judgment against all three defendants. The Main Streetdefendants now appeal.
We affirm. Plaintiff demonstrated entitlement to a default judgment by submitting proof ofservice upon the Main Street defendants, the facts supporting its claim, and the Main Streetdefendants' default (see CPLR 3215 [f]; 333 Cherry LLC v Northern Resorts, Inc., 66 AD3d 1176,1178-1179 [2009]). In response, the Main Street defendants failed to establish a "reasonableexcuse for delay or default" that would justify an extension of their time to answer (CPLR 3012[d]; see Walley v LeatherstockingHealthcare, LLC, 79 AD3d 1236, 1237 [2010]; 333 Cherry LLC v Northern Resorts,Inc., 66 AD3d at 1177). The Main Street defendants did not dispute that service was properlymade upon the Secretary of State pursuant to Business Corporation Law § 306 (b) (1);rather, Georgina Tufano, who claims to be the Main Street defendants' only member, contendsthat Toscani received the documents in the mail but did not inform her. Notably, however, meredenial of receipt of the summons and complaint will not defeat the presumption of proper serviceestablished here (see 333 Cherry LLC v Northern Resorts, Inc., 66 AD3d at 1178; Brightly v Florida N., Inc., 54 AD3d1127, 1128 [2008]; Trini RealtyCorp. v Fulton Ctr. LLC, 53 AD3d 479, 479-480 [2008]) and, under the circumstancesof this case, Toscani's conclusory affidavit in support of the cross motion is insufficient to rebutthe presumption of receipt by the proper party. Accordingly, we cannot say that Supreme Courtabused its discretion in denying the cross motion for leave to file a late answer and grantingplaintiff's motion for a default judgment.
Rose, Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.