Rosenthal v Lahiji

[*1] Rosenthal v Lahiji 2004 NY Slip Op 50685(U) Decided on June 22, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-966 N C

KENNETH J. ROSENTHAL, M.D. P.C., Respondent,

against

JAHANSHAH LAHIJI, Appellant.

Appeal by defendant from an order of the Commercial Claims Part of the District Court, Nassau County (S. Jaeger, J.), entered May 1, 2003, which denied his motion to vacate a default judgment.

Order unanimously affirmed without costs.

It is well settled that a party seeking to vacate a default judgment must establish both a reasonable excuse for the default and the existence of a meritorious defense (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). The determination of what constitutes a reasonable excuse for a default lies within the discretion of the court below (see Bardales v Blades, 191 AD2d 667 [1993]).

Although defendant in this commercial claims action arising out of a consumer transaction stated that he never received proper notice of the proceeding, a return receipt in the court file indicated that the claim was delivered and signed for. Furthermore, the court's mailing of the claim by ordinary first class mail was not returned as undeliverable, giving rise to a presumption of receipt, which was not rebutted by defendant's mere denial of receipt. Accordingly, it was not an improvident exercise of discretion for the court to deny defendant's motion.

Although it is not necessary to address the issue, this court notes that the evidence submitted by defendant did not establish a meritorious defense to the action.
Decision Date: June 22, 2004