| Reich v Redley |
| 2012 NY Slip Op 05160 [96 AD3d 1038] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Alexander Reich, Respondent, v Dwight Redley,Appellant, et al., Defendants. |
—[*1] Solomon Rosengarten, Brooklyn, N.Y., for respondent.
In an action to foreclose a mortgage, the defendant Dwight Redley appeals (1) from an orderof the Supreme Court, Kings County (Steinhardt, J.), dated December 9, 2009, which denied hismotion to vacate his default in appearing or answering the complaint, and (2), as limited by hisbrief, from so much of an order of the same court dated August 20, 2010, as denied that branchof his motion which was for leave to renew his prior motion to vacate.
Ordered that the order dated December 9, 2009, is affirmed; and it is further,
Ordered that the order dated August 20, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court properly denied the motion of the defendant Dwight Redley to vacate hisdefault in appearing or answering the complaint. Insofar as Redley moved to vacate his defaultpursuant to CPLR 5015 (a) (4) for lack of jurisdiction, the affidavit of the plaintiff's processserver constituted prima facie evidence of proper service pursuant to CPLR 308 (1) (see Tribeca Lending Corp. v Crawford,79 AD3d 1018, 1019 [2010]; Matter of Perskin v Bassaragh, 73 AD3d 1073 [2010]; Scarano v Scarano, 63 AD3d 716[2009]). Redley's bare and unsubstantiated denial of service in this case was insufficient to rebutthe presumption of proper service created by the plaintiff's duly executed affidavit of service (see Citimortgage, Inc. v Phillips, 82AD3d 1032 [2011]; Valiotis vPsaroudis, 78 AD3d 683 [2010]; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885 [2010]; Pezolano v Incorporated City of GlenCove, 71 AD3d 970, 971 [2010]; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327[2009]; European Am. Bank v Abramoff, 201 AD2d 611 [1994]). Moreover, insofar asRedley moved also to vacate his default pursuant to CPLR 5015 (a) (1) by demonstrating areasonable excuse for the default and a potentially meritorious defense (see Eugene DiLorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), he "failed to establish areasonable excuse for his default since the only excuse he proffered was that he was not servedwith process" (Stephan B. Gleich &Assoc. v Gritsipis, 87 AD3d 216, 221 [2011]; see Pezolano v Incorporated City ofGlen Cove, 71 AD3d at 971). As Redley failed to offer a reasonable excuse, "it isunnecessary to consider whether [he] sufficiently demonstrated the existence of a [*2]potentially meritorious defense" (Lane v Smith, 84 AD3d 746, 748[2011]).
The Supreme Court also properly denied that branch of Redley's motion which was for leaveto renew his motion to vacate his default in appearing or answering, as he failed to offer areasonable justification for his failure to submit the purported new facts at the time of the priormotion (see CPLR 2221 [e] [3]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1138[2011]; Jordan v Yardeny, 84 AD3d1172, 1173 [2011]; Zito vJastremski, 84 AD3d 1069, 1071 [2011]). In any event, the new facts would not havechanged the prior determination (see CPLR 2221 [e] [2]; Davidoff v East 13th St. Tifereth Place,LLC, 84 AD3d 1302, 1303 [2011]; Jordan v Yardeny, 84 AD3d at 1173;Zito v Jastremski, 84 AD3d at 1071). Mastro, A.P.J., Balkin, Chambers and Lott, JJ.,concur.