96 Pierrepont, LLC v. Mauro

304 A.D.2d 631, 757 N.Y.S.2d 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 2003
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hubsher, J.), dated November 27, 2001, as denied their motion to vacate a judgment of the same court, dated June 28, 2001, entered upon their default in appearing and answering.

Ordered that the order is affirmed insofar as appealed from, with costs.

The process server’s affidavits of service constitute prima facie evidence of proper service pursuant to CPLR 308 (2), and the defendants’ unsubstantiated denials of service of the summons and complaint were insufficient to rebut that showing (see Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]). Therefore, that branch of the motion which was to vacate the default judgment pursuant to CPLR 5015 (a) (4) was properly denied without a hearing (see Sardar v Birra, 287 AD2d 446 [2001]).

The defendants were not entitled to relief pursuant to CPLR 317 or CPLR 5015 (a) (1), since they failed to show either that they did not receive notice of the action in time to defend, or that their default in appearing and answering was not intentional (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]; Eretz Funding v Shalosh Assoc., 266 AD2d 184, 185 [1999]). Florio, J.P., Luciano, Schmidt and Cozier, JJ., concur.