Platonov v. Sciabarra

305 A.D.2d 651, 759 N.Y.S.2d 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Held, J.), dated April 9, 2002, which denied their motion, inter alia, to vacate their default in serving opposition papers to the defendant’s motion to dismiss the complaint for lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs motion, inter alia, to vacate their default in serving opposition papers to the defendant’s motion to dismiss the complaint for lack of personal jurisdiction. The plaintiffs failed to demonstrate a reasonable excuse for their default. Although the plaintiffs’ attorney claimed that he did not receive a copy of the defendant’s motion papers, his unsubstantiated excuse of nonreceipt was insufficient to rebut the proof that the motion papers were properly mailed and the presumption of receipt (see Matter of Aetna Life & Cas. Co. v Walker, 255 AD2d 381 [1998]; Orlando v Corning Inc., 213 AD2d 464 [1995]; Jeraci v Froehlich, 129 AD2d 557 [1987]).

In addition, the plaintiffs failed to demonstrate either the existence of good cause or that the interest of justice would be served by permitting late service of the complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Altman, J.P., McGinity, Luciano and H. Miller, JJ., concur.