Carlino v Subbiah

[*1] Carlino v Subbiah 2014 NY Slip Op 50893(U) Decided on June 9, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570224/14

Ricardo Carlino, Plaintiff-Respondent,

against

Vassan Subbiah, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered October 22, 2013, which denied his motion to vacate his default in answering the complaint and to dismiss the complaint.

Per Curiam.

Order (Frank P. Nervo, J.), entered October 22, 2013, affirmed, without costs.

Defendant's motion to vacate his default in answering for lack of personal jurisdiction (see CPLR 5015[a][4]) was properly denied. The process server's affidavit, indicating that service had been made by delivery of the summons and complaint to a lobby attendant or "doorman" at defendant's residential apartment building on West 55th Street, where access to the building was prohibited (see Al Fayed v Barak, 39 AD3d 371 [2007]), was prima facie evidence of proper service under CPLR 308(2) (see Grinshpun v Borokhovich, 100 AD3d 551 [2012]). Defendant's bald assertion in his moving affidavit that he "vacated" the West 55th Street apartment shortly before service was made — with defendant stopping short of stating that he had taken up residence elsewhere, permanent or otherwise — was insufficient to rebut the presumption of proper service established by the process server's affidavit (cf. Sileo v Victor, 104 AD3d 669 [2013]).

To the extent that defendant's motion papers can be read as seeking to vacate his default pursuant to CPLR 5015(a)(1), we note additionally that no meritorious defense was shown.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: June 09, 2014