Gourvitch v. 92nd & 3rd Rest Corp.

2017 NY Slip Op 40, 146 A.D.3d 431, 44 N.Y.S.3d 403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2017
• Docket: 2638N 153131/15
• Status: Published

Opinion

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered April 15, 2016, which denied the motion of defendant 92nd and 3rd Rest Corp. to vacate the default judgment entered against it, unanimously affirmed, without costs.

Plaintiff’s noncompliance with the “additional service” requirement of CPLR 3215 (g) (4) (i) does not warrant vacatur of the default judgment absent a showing of a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Lopez v Trucking & Stratford, 299 AD2d 187 [1st Dept 2002]; Mauro v 1896 Stillwell Ave., Inc., 39 AD3d 506 [2d Dept 2007]). The motion court properly denied vacatur on the ground that 92nd and 3rd Rest Corp.’s conclusory denial of receipt of the summons and complaint was insufficient to rebut the presumption of service created by the affidavit of service reflecting service through the Secretary of State (see Gonzalez v City of New York, 106 AD3d 436 [1st Dept 2013]; Kolonkowski v Daily News, L.P., 94 AD3d 704 [2d Dept 2012]).

We have considered 92nd and 3rd Rest Corp.’s remaining arguments and find them unavailing.

Concur — Saxe, J.P., Moskowitz, Gische, Kahn and Gesmer, JJ.