Croom v. Fondo

209 A.D.2d 296, 619 N.Y.S.2d 544

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Myriam Altman, J.), entered July 2, 1993, which confirmed the Referee’s report that service had been properly effected on defendant and denied defendant’s prior motion to vacate his default, unanimously affirmed, without costs.

Contrary to defendant’s claim, the Special Referee did not place the burden on him to demonstrate that he was properly served. Based on the testimony adduced at the traverse hearing, plaintiff satisfied her burden of demonstrating that defendant was personally served with process. To the extent that defendant challenges the credibility and factual findings of the Special Referee and the IAS Court, we note that these findings are substantiated by the record.

Further, the record with respect to defendant’s motion to open his default is not developed and therefore this Court is unable to review it. However, based on the limited argument defendant raises on appeal, vacatur of the default is not warranted since defendant failed to provide a reasonable excuse therefor or a meritorious defense to the action. Concur —Asch, J. P., Rubin, Nardelli and Tom, JJ.