Gaitanidis v. Perri Logan Equity, Inc.

Opinion

Gaitanidis v Perri Logan Equity, Inc.

2026 NY Slip Op 04931

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Makis Gaitanidis, et al., respondents,

v

Perri Logan Equity, Inc., et al., appellants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-08839, (Index No. 613993/21)

Francesca E. Connolly, J.P.

William G. Ford

Helen Voutsinas

Laurence L. Love, JJ.

Campolo, Middleton & McCormick, LLP, Ronkonkoma, NY (Jeffrey V. Basso and Meagan R. Nolan of counsel), for appellants.

The Law Offices of John Caravella, P.C., Uniondale, NY, for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated April 29, 2024. The order, insofar as appealed from, denied the motion of the defendant Steven Nemiroff pursuant to CPLR 5015(a) to vacate so much of an order of the same court dated April 12, 2022, as granted that branch of the plaintiffs' unopposed motion which was for leave to enter a default judgment against the defendant Steven Nemiroff upon his default in appearing or answering the complaint and so much of a clerk's judgment of the same court dated April 19, 2022, as was in favor of the plaintiffs and against the defendant Steven Nemiroff, and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him.

ORDERED that the appeal by the defendant Perri Logan Equity, Inc., is dismissed, as that defendant is not aggrieved by the portion of the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further,

ORDERED that the order dated April 29, 2024, is affirmed insofar as appealed from by the defendant Steven Nemiroff; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

In July 2021, the plaintiffs commenced this action against the defendant Steven Nemiroff (hereinafter the defendant) and another defendant. The plaintiffs purportedly served the defendant pursuant to CPLR 308(2). The defendant failed to appear or answer the complaint, and in an order dated April 12, 2022, the Supreme Court, inter alia, granted that branch of the plaintiffs' unopposed motion which was for leave to enter a default judgment against the defendant. Thereafter, a clerk's judgment dated April 19, 2022 was entered, among other things, in favor of the plaintiffs and against the defendant.

The defendant moved pursuant to CPLR 5015(a)(1) and (4) to vacate so much of the order dated April 12, 2022, as granted that branch of the plaintiffs' motion which was for leave to enter a default judgment against him and so much of the clerk's judgment dated April 19, 2022, as was in favor of the plaintiffs and against him, and pursuant to CPLR 3211(a) to dismiss the [*2]complaint insofar as asserted against him for lack of personal jurisdiction. In an order dated April 29, 2024, the Supreme Court, inter alia, denied the defendant's motion. The defendant appeals.

"When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4) and also seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1047; see Nurhan v Harley, 237 AD3d 728, 729).

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, vacatur of so much of the order dated April 12, 2022, as granted that branch of the plaintiffs' motion which was for leave to enter a default judgment against him and so much of the clerk's judgment as was in favor of the plaintiffs and against him. "Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589). In order to obtain vacatur of a default or order pursuant to CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service (see Nurhan v Harley, 237 AD3d at 730). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (Scarano v Scarano, 63 AD3d 716, 716 [citation and internal quotation marks omitted]). "Bare and unsubstantiated denials are insufficient to rebut the presumption of service" (HSBC Bank USA, N.A. v Archibong, 157 AD3d 662, 662-663 [internal quotation marks omitted]).

"CPLR 308(2) provides, in relevant part, that personal service upon a natural person may be made 'by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business'" (Deutsche Bank Natl. Trust Co. v Patisso, 193 AD3d 814, 816, quoting CPLR 308[2]). Here, the defendant's bare and unsubstantiated denials failed to rebut the specific facts contained in a process server's affidavit of service that a person of suitable age and discretion was served at the defendant's actual place of business and that the defendant was mailed a copy of the summons at his actual place of business. Accordingly, no hearing was required (see RG Remodeling, Inc. v Greco, 231 AD3d 757, 758).

Moreover, insofar as the defendant moved pursuant to CPLR 5015(a)(1) to vacate the subject portions of the order dated April 12, 2022, and the clerk's judgment, he failed to establish a reasonable excuse for his default, as professed ignorance of the law and a lack of understanding of the need to serve an answer does not constitute a reasonable excuse under the circumstances of this matter (see M & T Bank v Ronnermann, 199 AD3d 996, 997), and the defendant's purported medical issues did not arise until after he had defaulted. As the defendant failed to provide a reasonable excuse for his default, this Court need not determine if he had a potentially meritorious defense (see Simpson v Clough, 232 AD3d 645, 646).

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court