Slimani v. Citibank, N.A.

47 A.D.3d 489, 849 N.Y.S.2d 541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2008
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered February 13, 2007, awarding third-party plaintiff the principal sum of $10,000, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 9, 2007, which granted third-party plaintiffs motion for default judgment and denied third-party defendant’s cross motion to vacate the default, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The judgment was based on a prior settlement that had resolved issues of unjust enrichment and implied indemnity (see McDermott v City of New York, 50 NY2d 211, 217 [1980]). While third-party defendant contends that this was error, we need not reach this issue as third-party defendant was unable to demonstrate a reasonable excuse for his multiple and acknowledged defaults (Hyundai Corp. v Republic of Iraq, 20 AD3d 56, 62 [2005], appeal dismissed 5 NY3d 783 [2005]). Mere denial of service would not rebut the presumption of proper service created by a properly executed affidavit of service (De La Barrera v Handler, 290 AD2d 476, 477 [2002]; Fairmount Funding v Stefansky, 235 AD2d 213 [1997]). Concur—Mazzarelli, J.P, Andrias, Catterson and McGuire, JJ.