Gonzalez v. City of New York

Appellate Division of the Supreme Court of New York

Gonzalez v. City of New York

106 A.D.3d 436, 965 N.Y.S.2d 46

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 2013

StatusPublished

This text of 106 A.D.3d 436 (Gonzalez v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gonzalez v. City of New York, 106 A.D.3d 436, 965 N.Y.S.2d 46 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J), [437]*437entered August 17, 2012, which denied defendant Racson Group Inc.’s motion to vacate the default judgment entered against it, unanimously affirmed, without costs.

The court properly determined that defendant failed to demonstrate that its default should be vacated under either CPLR 317 or 5015 (a) (1). The record indicates that an affidavit of a process server stated that defendant was served through the Secretary of State. Under CPLR 317, defendant was required to demonstrate, inter alia, that it did not receive notice of the summons in time to defend, and that it had a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, defendant provided only a conclusory affidavit denying receipt of the pleadings, without further explanation, which was insufficient to rebut the presumption of service created by the process server’s affidavit (see Grinshpun v Borokhovich, 100 AD3d 551 [1st Dept 2012]).

Defendant also failed to satisfy the requirements of CPLR 5015 (a) (1) by failing to provide a reasonable excuse for its default (see Rugieri v Bannister, 7 NY3d 742, 744 [2006]). Concur—Friedman, J.E, Acosta, Moskowitz, Manzanet-Daniels and Clark, JJ.

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Order, Supreme Court, New York County (Barbara Jaffe, J), [437]*437entered August 17, 2012, which denied defendant Racson Group Inc.’s motion to vacate the default judgment entered against it, unanimously affirmed, without costs.

The court properly determined that defendant failed to demonstrate that its default should be vacated under either CPLR 317 or 5015 (a) (1). The record indicates that an affidavit of a process server stated that defendant was served through the Secretary of State. Under CPLR 317, defendant was required to demonstrate, inter alia, that it did not receive notice of the summons in time to defend, and that it had a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, defendant provided only a conclusory affidavit denying receipt of the pleadings, without further explanation, which was insufficient to rebut the presumption of service created by the process server’s affidavit (see Grinshpun v Borokhovich, 100 AD3d 551 [1st Dept 2012]).

Defendant also failed to satisfy the requirements of CPLR 5015 (a) (1) by failing to provide a reasonable excuse for its default (see Rugieri v Bannister, 7 NY3d 742, 744 [2006]). Concur—Friedman, J.E, Acosta, Moskowitz, Manzanet-Daniels and Clark, JJ.

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Bluebook (online)

106 A.D.3d 436, 965 N.Y.S.2d 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-city-of-new-york-nyappdiv-2013.

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