Nouveau El. Indus., LLC v. Sprei

Opinion

Nouveau El. Indus., LLC v Sprei

2026 NY Slip Op 05189

September 2, 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.

Nouveau Elevator Industries, LLC, respondent,

v

Eli Inzlicht Sprei, appellant.

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

Decided on September 2, 2026

2024-13469, (Index No. 605424/23)

Francesca E. Connolly, J.P.

Cheryl E. Chambers

William G. Ford

James P. McCormack, JJ.

The Law Office of Avram E. Frisch, LLC, New York, NY, for appellant.

[*1]

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Conrad D. Singer, J.), dated October 29, 2024. The order denied the defendant's motion, in effect, pursuant to CPLR 5015(a) to vacate a clerk's judgment of the same court dated January 23, 2024, entered upon the defendant's failure to appear or answer the complaint, which is in favor of the plaintiff and against the defendant in the total sum of $43,009.74.

ORDERED that the order is affirmed, without costs or disbursements.

In March 2023, the plaintiff commenced this action against the defendant to recover damages allegedly arising from a contractual dispute. A clerk's judgment dated January 23, 2024, was entered in favor of the plaintiff and against the defendant, upon his failure to appear or answer the complaint, in the total sum of $43,009.74.

In June 2024, the defendant moved, in effect, pursuant to CPLR 5015(a) to vacate the clerk's judgment, contending, inter alia, that he was not served with the summons and complaint and that the plaintiff did not comply with CPLR 3215(f). In an order dated October 29, 2024, the Supreme Court denied the defendant's motion. The defendant appeals.

"Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and 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)" (HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 862-863 [internal quotation marks omitted]).

"'A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service'" (Unifund CCR, LLC v Valvis, 207 AD3d 594, 595, quoting Bethpage Fed. Credit Union v Grant, 178 AD3d 997, 997; see U.S. Bank N.A. v Fessler, 231 AD3d 896, 898). "To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service" (Tuttnauer USA Co., Ltd. v Russo, 216 AD3d 846, 847). "A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit" (PennyMac Corp. v Barbosa, 189 AD3d 863, 865).

Here, a process server's affidavit constituted prima facie evidence of valid service [*2]pursuant to CPLR 308(2) (see Wells Fargo Bank, N.A. v Singh, 204 AD3d 732, 733; Nationstar Mtge., LLC v Kamil, 155 AD3d 966, 967). The process server stated, among other things, that he delivered the summons and complaint to a person of suitable age and discretion, identified as Jane Doe, at the defendant's home and thereafter mailed a copy to the defendant's home.

Contrary to the defendant's contention, his affidavit did not rebut the process server's sworn statement that a person fitting the physical description of Jane Doe, regardless of whether that person was his wife, was present at the defendant's home at the time and accepted service on his behalf (see Deutsche Bank Natl. Trust Co. v Benitez, 179 AD3d 891, 892; Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717, 718; LaSalle Bank N.A. v Calle, 153 AD3d 801, 802-803). Further, the defendant's conclusory assertions that neither he nor his wife recalled receiving a copy of the summons and complaint in the mail and that he only learned of the action after his bank account was restrained were inadequate to overcome the inference of proper mailing arising from the affidavit of service (see Citimortage, Inc. v Cardali, 230 AD3d 467, 469; Nationstar Mtge., LLC v Kamil, 155 AD3d at 968).

"A defendant seeking to vacate a default in answering or appearing upon the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action" (LaSalle Bank N.A. v Calle, 153 AD3d at 802; see Rodriguez v Kvatchadze, 237 AD3d 765, 766; Berganza v Pecora, 192 AD3d 743, 745). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court" (Rodriguez v Kvatchadze, 237 AD3d at 766, quoting M.V. v Applied Behavioral Mental Health Counseling, P.C., 219 AD3d 943, 944; see Berganza v Pecora, 192 AD3d at 745).

Since the defendant failed to establish a reasonable excuse for his default, it is unnecessary to consider whether he had a meritorious defense to the action (see Wells Fargo Bank, N.A. v Singh, 204 AD3d at 734; Deutsche Bank Natl. Trust Co. v Benitez, 179 AD3d at 893; LaSalle Bank N.A. v Calle, 153 AD3d at 803) or his argument that the plaintiff failed to comply with CPLR 3215(f) (see Heitner v Capital One, N.A., 226 AD3d 979, 982).

The defendant's remaining contention is without merit.

Accordingly, the Supreme Court properly denied the defendant's motion, in effect, pursuant to CPLR 5015(a) to vacate the clerk's judgment.

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court