Opinion
No. 2014–624NC.
07-13-2015
Gregory J. PAPPAS, Respondent, v. SUNRISE VOLKSWAGEN, INC., Appellant.
Opinion
Appeal from an order of the District Court of Nassau County, First District (Joy M. Watson, J.), entered February 20, 2014. The order denied a motion by defendant Sunrise Volkswagen, Inc. (sued herein as Sunrise Volkswagon) to vacate a default judgment.
ORDERED that the order is affirmed, without costs; and it is further,
ORDERED that the Clerk of the District Court of Nassau County, First District, or his designee shall amend the caption of the action to reflect defendant's correct name as Sunrise Volkswagen, Inc.
Plaintiff commenced this small claims action to recover the principal sum of $1,256.31 for allegedly unnecessary repairs defendant made to plaintiff's automobile. Defendant failed to appear or answer, and a default judgment was entered against defendant on August 9, 2013. Thereafter, defendant moved to vacate the default judgment on the ground of either a lack of personal jurisdiction over it (see CPLR 5015[a][4] ) or, in the alternative, that its default was excusable and that it had a meritorious defense (see CPLR 5015 [a][1]; Euguene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986] ). By order dated February 20, 2014, the District Court denied the motion.
Pursuant to UDCA 1803, the clerk of the court is to provide a defendant with notice of the claim “by ordinary first class mail and certified mail with return receipt requested.... If, after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim.” Here, defendant's “service advisor” submitted an affidavit wherein he speculated that defendant had either not received notice of the claim or that an employee had misplaced it. Defendant's moving papers failed to rebut the presumption that defendant had received notice of the claim and, thus, that the court has acquired jurisdiction over defendant, as there is no showing that the ordinary first class mailing to defendant had been returned as undeliverable prior to the expiration of 21 days (see UDCA 1803 ). In addition, defendant failed to make an adequate showing of an excusable default (see CPLR 5015 [a] [1] ). In view of the foregoing, it is unnecessary to consider whether defendant sufficiently established the existence of a potentially meritorious defense to the action (see HSBC Bank USA, N.A. v. Roldan, 80 AD3d 566 [2011] ). Consequently, the District Court did not improvidently exercise its discretion in denying defendant's motion to vacate the default judgment.
Accordingly, as substantial justice was done between the parties (see UDCA 1807 ), the order is affirmed.
We note that the caption and some of the other court papers do not correctly state defendant's name. The Clerk of the District Court of Nassau County, First District, or his designee is directed to amend the caption to reflect defendant's correct name as Sunrise Volkswagen, Inc. (see CPLR 5019[a] ; see also UDCA 1814 ), and the caption of the appeal has been so amended.
MARANO, P.J., IANNACCI and CONNOLLY, JJ., concur.