| Stevens v Charles |
| 2013 NY Slip Op 00194 [102 AD3d 763] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Dawn Stevens, Appellant, v Mark Anthony LouisCharles, Respondent. |
—[*1] Sepe & O'Mahony, PLLC, Rockville Centre, N.Y. (Michael J. Sepe and William J.O'Mahony of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Gazzillo, J.), dated November 8, 2011,which granted the defendant's motion, in effect, to vacate an order of the same courtdated December 2, 2009, granting the plaintiff's unopposed motion for leave to enterjudgment against the defendant on the issue of liability upon his default in appearing oranswering, and any judgment entered thereon, and, in effect, for leave to serve a lateanswer.
Ordered that the order dated November 8, 2011, is reversed, on the law, with costs,the defendant's motion, in effect, to vacate an order of the same court dated December 2,2009, granting the plaintiff's unopposed motion for leave to enter judgment against thedefendant on the issue of liability upon his default in appearing or answering, and anyjudgment entered thereon, and, in effect, for leave to serve a late answer is denied, andthe order dated December 2, 2009, is reinstated.
In support of that branch of his motion which was pursuant to CPLR 5015 (a) (1),the defendant was required to demonstrate a reasonable excuse for his default inappearing or answering and a potentially meritorious defense to the action (seeCPLR 5015 [a] [1]; Arias vFirst Presbyt. Church in Jamaica, 100 AD3d 940 [2012]; Ramirez v Islandia Exec. Plaza,LLC, 92 AD3d 747, 748 [2012]; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522[2006]). The affidavit of the plaintiff's process server constituted prima facie evidencethat the defendant was validly served at his actual place of business pursuant to CPLR308 (2) (see Bank of N.Y. vSegui, 68 AD3d 908, 909 [2009]; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524,525 [2008]; Jefferson vNetusil, 44 AD3d 621 [2007]). The defendant's bare and unsubstantiatedassertion that he did not receive the complaint was insufficient to establish a reasonableexcuse for his default (seeChichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 820 [2012]; Reich v Redley, 96 AD3d1038, 1039 [2012]; Pezolano v Incorporated City of Glen Cove, 71 AD3d 970,971 [2010]; Roberts vAnka, 45 AD3d 752, 754 [2007]). Furthermore, the defendant's assertions thathe was not familiar with the American legal system and could not afford an attorney wereinsufficient to excuse the approximately 15-month delay between the time that hereceived notice of the scheduled [*2]inquest on the issueof damages and the time that he moved to vacate his default (see U.S. Bank N.A. vSlavinski, 78 AD3d 1167 [2010]; O'Donnell v Frangakis, 76 AD3d 999, 1000 [2010]; Matter of Nieto, 70 AD3d831, 832 [2010]; Dorrer vBerry, 37 AD3d 519, 520 [2007]; Nahar v Awan, 33 AD3d 680, 681 [2006]; Robinson v 1068 Flatbush Realty,Inc., 10 AD3d 716 [2004]; Eretz Funding v Shalosh Assoc., 266 AD2d184 [1999]; Perellie v Crimson's Rest., 108 AD2d 903, 904 [1985]). Since thedefendant failed to demonstrate a reasonable excuse, he was not entitled to reliefpursuant to CPLR 5015 (a) (1) (see O'Donnell v Frangakis, 76 AD3d at 1000).
In support of that branch of his motion which was pursuant to CPLR 317, thedefendant was required to demonstrate that he did not personally receive notice of thesummons in time to defend and a potentially meritorious defense (see CPLR 317;Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986];Taieb v Hilton Hotels Corp., 60 NY2d 725, 728 [1983]; Fleisher v Kaba, 78 AD3d1118, 1119 [2010]; Cohenv Michelle Tenants Corp., 63 AD3d 1097, 1098 [2009]; Reyes v DCH Mgt., Inc., 56AD3d 644 [2008]). The defendant's mere denial of receipt of the summons andcomplaint was insufficient to establish lack of actual notice for purposes of obtainingrelief pursuant to CPLR 317 (see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d820 [2012]; Wassertheil vElburg, LLC, 94 AD3d 753, 754 [2012]; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83AD3d 1080, 1081-1082 [2011]; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d552, 553 [2007]).
The defendant's remaining contention is without merit.
Accordingly, the defendant's motion should have been denied. Rivera, J.P.,Dickerson, Leventhal and Lott, JJ., concur.