Globe Indem. Co. v Mike's Heavy Duty Towing Inc.

[*1] Globe Indem. Co. v Mike's Heavy Duty Towing Inc. 2004 NY Slip Op 51634(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-251 K C

GLOBE INDEMNITY COMPANY, Appellant,

against

MIKE'S HEAVY DUTY TOWING INC., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (S. Krauss, J.), entered December 18, 2003, which granted defendant's motion to vacate the default judgment entered against it.

Order unanimously reversed with $10 costs and defendant's motion to vacate the default judgment denied.

After a default judgment was entered in this action, plaintiff served a copy of the judgment upon defendant. More than four years later, defendant moved to vacate the judgment, claiming it first learned of the action and the judgment when the marshal
came to levy upon its property. The court granted defendant's motion, holding that defendant established the existence of a meritorious defense and that it did not receive actual notice of the commencement of the action. This appeal by plaintiff ensued.

Defendant's motion papers failed to sufficiently demonstrate the existence of a meritorious defense (see Peacock v Kalikow, 239 AD2d 188, 190 [1997]; National Recovery Sys. v Weiss, 226 AD2d 289, 290 [1996]). While defendant tried to demonstrate the existence of a meritorious defense in its reply papers, it was not properly before the court (see Jackson-Cutler v Long, 2 AD3d 590 [2003]; Adler v Suffolk County Water Auth., 306 AD2d 229, 230 [2003]). [*2]In any event, inasmuch as the reply affidavit submitted by defendant's vice-president admitted that the plaintiff provided insurance for the corporation during the relevant years, defendant's reply papers ultimately failed to demonstrate the existence of a meritorious defense. Accordingly, defendant's motion to vacate the default judgment should have been denied.

Moreover, because the record contains an affidavit of service which indicates that a copy of the judgment was served upon defendant more than four years prior to defendant's motion to vacate the default judgment, defendant's conclusory claim that it did not learn of the action or that a judgment had been entered until the marshal sought to levy upon its property was "insufficient to rebut the presumption of proper service
created by an affidavit of service" (Truscello v Olympia Constr., Inc., 294 AD2d 350, 351 [2002]). As a result, this is yet another reason why defendant was not entitled to vacatur of the default judgment.

In light of the foregoing, the order appealed from must be reversed and the default judgment reinstated.
Decision Date: December 15, 2004