Truscello v. Olympia Construction, Inc.

294 A.D.2d 350, 741 N.Y.S.2d 709, 2002 N.Y. App. Div. LEXIS 4872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2002
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated April 27, 2001, which denied its motion to vacate a judgment of the same court (Slavin, J.H.O.), entered October 12, 2000, in favor of the plaintiffs and against it in the principal sum of $150,000, upon its default in answering the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate its default under CPLR 317 and 5015 (a) (1). With regard to the application for relief under CPLR 317, the defendant failed to demonstrate that it did not receive actual notice of the summons in time to defend. Mere denials of receipt are insufficient to rebut the presumption of proper service created by an affidavit of service (see De La Barrera v Handler, 290 AD2d 476; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453; Facey v Heyward, 244 AD2d 452). Denial of the application for relief pursuant to CPLR 5015 (a) (1) also was proper, since the defendant failed to proffer a reasonable excuse for its default (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138; De La Barrera v Handler, supra; Schiller v Sun Rock Bldg. Corp., 260 AD2d 566). Prudenti, P.J., Feuerstein, Friedmann and H. Miller, JJ., concur.