Silverman v. Deutsch

283 A.D.2d 478, 724 N.Y.S.2d 647, 2001 N.Y. App. Div. LEXIS 4975

Opinion

—In an action, inter alia, to recover damages for unjust enrichment and conversion, the defendant Libby Deutsch appeals from an order of the Supreme Court, Rockland County (Meehan, J.), dated May 31, 2000, which denied her motion to vacate a judgment of the same court, entered February 22, 2000, entered upon an order of the same court, dated November 9, 1999, granting the plaintiffs unopposed motion to strike the defendants’ answer for failure to proceed with discovery.

Ordered that the order is affirmed, with costs.

To vacate a default judgment pursuant to CPLR 5015 (a), a defendant must demonstrate a reasonable excuse for the default and a meritorious defense (see, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Barasch v Micucci, 49 NY2d 594; Wynne v Wagner, 262 AD2d 556). The appellant claimed that she did not receive actual notice of the action until after the entry of judgment. However, the appellant was properly served pursuant to CPLR 308 (2) (see, Wieck v Halpern, 255 AD2d 438; Simmons First Natl. Bank v Mandracchia, 248 AD2d 375), and she failed to allege specific facts to rebut the statements in the process server’s affidavit (cf., European Am. Bank v Abramoff, 201 AD2d 611). Thus, the Supreme Court properly denied the appellant’s motion to vacate the default. Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.