Opinion
No. 2022-625 OR C
02-08-2024
Louis R. Cappa, DPM, Doing Business as Cappa Podiatry, Respondent, v. Andrew Mahoney, Appellant.
Andrew Mahoney, appellant pro se. Roach & Murtha, P.C., for respondent (no brief filed).
Unpublished Opinion
Andrew Mahoney, appellant pro se.
Roach & Murtha, P.C., for respondent (no brief filed).
PRESENT:: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeal from an order of the City Court of Newburgh, Orange County (Joanne Matthews Forbes, J.), entered July 11, 2022. The order denied defendant's motion to vacate a judgment entered on March 24, 2022 upon his failure to appear or answer the complaint.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action to recover the principal sum of $2,575 for breach of contract, an account stated and in quantum meruit, asserting that plaintiff provided medical services to defendant and defendant failed to pay. The affidavit of service of process states that service of the summons and complaint was effectuated pursuant to CPLR 308 (2). Defendant failed to appear or answer the complaint, and, on March 24, 2022, a default judgment was entered against him in the principal sum of $2,575. Defendant's subsequent motion to vacate the default judgment was denied by the City Court in an order entered July 11, 2022.
To the extent that defendant asserted a lack of personal jurisdiction as a ground for vacating the default judgment (see CPLR 5015 [a] [4]), it is well established that a process server's affidavit of proper service constitutes prima facie evidence of that service, and, in order to rebut this showing and raise an issue of fact necessitating a traverse hearing, the party disputing service is required to submit a sworn, nonconclusory and factually specific denial of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719, 719 [2014]; U.S. Bank, N.A. v Arias, 85 A.D.3d 1014, 1015 [2011]; Daimler Trust v Ferro, 58 Misc.3d 152 [A], 2018 NY Slip Op 50116[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Here, plaintiff made a prima facie showing of proper service by submitting the process server's affidavit of service, which alleged that the summons and complaint had been left with a person of suitable age and discretion at defendant's usual place of abode and that another copy had been mailed to defendant's last known residence (see CPLR 308 [2]; Nationstar Mtge., LLC v Kamil, 155 A.D.3d 966, 967 [2017]; LaSalle Bank N.A. v Calle, 153 A.D.3d 801, 802 [2017]; Daimler Trust v Ferro, 2018 NY Slip Op 50116[U]). Defendant's denial of service failed to rebut the affidavit of service, since he only stated that he lives alone and does not match the physical description set forth in the affidavit of service, but did not rebut the sworn allegation that a person fitting the physical description of "John Doe" was present at the residence and accepted service on behalf of defendant (see Washington Mut. Bank v Huggins, 140 A.D.3d 858 [2016]; HSBC Bank USA, N.A. v Miller, 121 A.D.3d 1044 [2014]). Consequently, defendant failed to establish a basis to vacate the default judgment on the ground of lack of personal jurisdiction.
To the extent that defendant's motion may be treated as also having been made based on excusable default (see CPLR 5015 [a] [1]), defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Nationstar Mtge., LLC v McLean, 140 A.D.3d 1131, 1132 [2016]; Santiago v New York City Health & Hosps. Corp., 10 A.D.3d 393 [2004]). Here, defendant's conclusory and unsubstantiated denial of service of the summons and complaint did not constitute a reasonable excuse for his default (see HSBC Bank USA, N.A. v Powell, 148 A.D.3d 1123 [2017]; Town House St., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 893, 894 [2006]). Thus, we need not determine whether defendant had a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 A.D.3d 724 [2013]; ACT Props. v Garcia, LLC, 102 A.D.3d 712 [2013]).
Likewise, defendant was not entitled to relief from the default judgment pursuant to CPLR 317. To obtain relief under CPLR 317, defendant was required to demonstrate that he "did not receive actual notice of the summons and complaint in time to defend the action" (Wassertheil v Elburg, LLC, 94 A.D.3d 753, 754 [2012] [internal quotation marks omitted]; see Clover M. Barrett, P.C. v Gordon, 90 A.D.3d 973 [2011]). Defendant's mere denial of receipt of the summons and complaint is insufficient to establish a lack of actual notice of the action (see Ultimate One Distrib. Corp. v 2900 Stillwell Ave., LLC, 140 A.D.3d 1054 [2016]; Wassertheil v Elburg, LLC, 94 A.D.3d at 754; Clover M. Barrett, P.C. v Gordon, 90 A.D.3d at 974).
Accordingly, the order is affirmed.
DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.