Summary
finding service on building concierge proper under CPLR 308 where process server was denied access to the door of the defendant's apartment
Summary of this case from Eros Int'l PLC v. Mangrove PartnersOpinion
11-10-2016
CITIBANK, N.A., Plaintiff–Respondent, v. K.L.P. SPORTSWEAR, INC., doing business as Luxe Eleven, Defendant, Yaacov Golob, Defendant–Appellant.
Schlacter & Associates, New York (Jed R. Schlacter of counsel), for appellant. Riemer & Braunstein LLP, New York (Alissa L. Poynor of counsel), for respondent.
Schlacter & Associates, New York (Jed R. Schlacter of counsel), for appellant.
Riemer & Braunstein LLP, New York (Alissa L. Poynor of counsel), for respondent.
TOM, J.P., SWEENY, RICHTER, MANZANET–DANIELS, WEBBER, JJ.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered September 29, 2015, which granted plaintiff's motion to confirm a special referee's report and recommendation, denied defendant-appellant's (defendant) cross motion to reject the report, and denied defendant's prior motion to vacate the default judgment against him, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered March 3, 2015, which, among other things, granted defendant's motion to vacate the default judgment against him to the extent of referring the issue of service of process to a special referee, unanimously dismissed, without costs, as academic.
In this action alleging defendant's failure to make payments in accordance with the terms of a business banking credit agreement, defendant seeks to vacate a default judgment entered against him, arguing that the court lacked jurisdiction to render the judgment (see CPLR 5015[a][4] ). Specifically, defendant contends that service was not proper under CPLR 308(2) because plaintiff failed to show that the process server requested and was denied access to defendant's apartment before delivering the papers to the building's concierge.
Plaintiff met its burden at the traverse hearing of demonstrating proper service of process by a preponderance of the evidence (see Blue Spot v. Superior Mdse. Elecs. Co., 150 A.D.2d 175, 176–177, 540 N.Y.S.2d 787 [1st Dept.1989] ). The process server testified that it was his general practice not to deliver papers to a concierge without first seeking permission to go up to the relevant apartment. The property manager of the building in which defendant resides likewise testified that it was the building's policy to not allow anyone to enter without the resident's permission. This testimony regarding general practices was sufficient to raise a presumption of proper service (see Spangenberg v. Chaloupka, 229 A.D.2d 482, 483, 645 N.Y.S.2d 514 [2d Dept.1996] ; see also F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797–798, 396 N.Y.S.2d 343, 364 N.E.2d 1115 [1977] ), and defendant failed to rebut this presumption (see 229 A.D.2d at 483 ). The process server's failure to preserve his contemporaneous logbook is not sufficient to rebut the presumption, especially since the property manager's testimony corroborated the testimony of the process server (see Kardanis v. Velis, 90 A.D.2d 727, 728, 455 N.Y.S.2d 612 [1st Dept.1982] ; Weissman v. Ryan, 37 Misc.3d 136[A], 2012 N.Y. Slip Op. 52143[U], 2012 WL 5854626 [App.Term, 1st Dept.2012] ).
There is no merit to defendant's claim that, even assuming proper service, the default judgment should be vacated pursuant to CPLR 5015(a)(1). Defendant's only proffered excuse for his default—that he never received the complaint—is negated by a finding of proper service. Absent a reasonable excuse, vacatur is not appropriate regardless of whether defendant has a meritorious defense (Caba v. Rai, 63 A.D.3d 578, 582, 882 N.Y.S.2d 56 [1st Dept.2009] ; Time Warner City Cable v. Tri State Auto, 5 A.D.3d 153, 153, 772 N.Y.S.2d 512 [1st Dept.2004], lv. dismissed 3 N.Y.3d 656, 782 N.Y.S.2d 696, 816 N.E.2d 569 [2004] ).
M–4896—Citibank v. K.L.P Sportswear, etc., et al.
Motion seeking to strike the reply brief denied.