| Grinshpun v Borokhovich |
| 2012 NY Slip Op 08063 [100 AD3d 551] |
| November 27, 2012 |
| Appellate Division, First Department |
| Aron Grinshpun et al., Respondents, v GennadyBorokhovich, Also Known as Eugene Borokhovich, Appellant, et al.,Defendant. |
—[*1] Michael Konopka, New York, for respondents.
Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 9,2011, awarding plaintiffs the principal sum of $2,162,104, and bringing up for review orders,same court and Justice, entered October 3, 2011, and December 23, 2011, which grantedplaintiffs' motion for a default judgment and which, to the extent appealed, denied defendantBorokhovich's motion for renewal, unanimously affirmed, without costs. Appeals from theaforesaid orders, unanimously dismissed, without costs, as subsumed in the appeal from thejudgment.
Judgment was properly awarded without an inquest since the amount sought was a "sumcertain" (see Transit Graphics v Arco Distrib., 202 AD2d 241 [1st Dept 1994]). Further,although not raised by the parties, the argument that an inquest was required was not raised untildefendant moved for renewal.
The challenge to service of process was properly denied without a traverse hearing. Theaffidavit of the process server constitutes prima facie evidence of proper service and the mereconclusory denial of receipt of service is insufficient to rebut the presumption that service wasproper (see Matter of de Sanchez,57 AD3d 452, 454 [1st Dept 2008];NYCTL 1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459, 460 [1st Dept2004]). Defendant's wife, who was alleged to have accepted receipt of the summons andcomplaint, failed to submit an affidavit denying receipt of service or a medical affidavitsubstantiating her claim that she was incapable of providing an affidavit on the initial motion.
The proposed answer verified by an attorney without personal knowledge of the facts wasinsufficient to set forth a meritorious defense warranting vacatur of the default (see Young v Richards, 26 AD3d249, 250 [1st Dept 2006]). Defendant's own brief conclusory statement submitted for thefirst time on renewal was also insufficient.
We have considered defendant's additional arguments and find them unavailing.Concur—Friedman, J.P., Sweeny, Moskowitz, Freedman and Román, JJ.