Daejan (NY) Ltd. v. Perez

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 2019
• Docket: 2019 NYSlipOp 51832(U)
• Status: Published

Opinion

Daejan (NY) Limited, Plaintiff-Appellant,

against

Edwin Perez, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Brenda Rivera, J.), entered September 10, 2018, which granted defendant's motion to vacate a default judgment and dismissed the action with prejudice.

Per Curiam.

Order (Brenda Rivera, J.), entered September 10, 2018, reversed, without costs, defendant's motion denied, and complaint and default judgment reinstated.

Defendant's affidavit submitted approximately 9 years after entry of the default judgment failed to rebut the presumption of proper service created by the affidavit of the process server (see Perilla v Carchi, 100 AD3d 429, 430 [2012]). In this regard, defendant failed to provide any support for his conclusory contention that he was "not living at" the Merritt Street, Port Chester, New York address where service was effectuated. In fact, defendant listed this same address as his residence in his supporting affidavit and proposed answer.

Nor was defendant entitled to vacatur relief pursuant to CPLR 5015(a)(1). Inasmuch as the only excuse offered is the meritless improper service argument, defendant has no reasonable excuse for the default. Furthermore, defendant's supporting affidavit and his proposed answer contain only conclusory assertions that he "[did] not owe this debt," which do not establish a meritorious defense.

Defendant was also not entitled to relief pursuant to CPLR 317, since his motion was made more than five years after the entry of the default judgment and he failed to demonstrate the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v Tricarico, 139 AD3d 722, 724 [2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: November 15, 2019