LR Credit 14, LLC v Walsh

[*1] LR Credit 14, LLC v Walsh 2014 NY Slip Op 51872(U) Decided on December 22, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-1107 K C

LR Credit 14, LLC, Respondent,

against

Coreen Walsh, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County, entered November 16, 2007, and from orders of the same court (Dawn Jimenez Salta, J.) entered November 27, 2012 and January 17, 2013, respectively. The judgment, entered upon defendant's failure to answer, awarded plaintiff the principal sum of $7,857.64. The order entered November 27, 2012 denied defendant's motion to vacate the default judgment. The order entered January 17, 2013 denied defendant's motion, in effect, for leave to reargue and/or renew her prior motion.

ORDERED that so much of the appeal as is from the judgment is dismissed, as no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the order entered November 27, 2012 is affirmed, without costs; and it is further,

ORDERED that so much of the appeal as is from the portion of the order entered January 17, 2013 which denied the branch of defendant's motion seeking, in effect, leave to reargue is dismissed, as no appeal lies from the denial of reargument; and it is further,

ORDERED that the order entered January 17, 2013, insofar as reviewed, is affirmed, without costs.

Plaintiff commenced this action to recover the principal sum of $7,857.64 for breach of contract. Upon defendant's failure to answer the complaint, a default judgment was entered on November 16, 2007. Approximately five years later, defendant moved to vacate the default judgment. In her affidavit in support of the motion, defendant alleged, in conclusory fashion, that she had never received any papers in this action, including the summons and complaint. In opposition to the motion, plaintiff's attorney referred to the affidavit of service, in which the process server alleged that he had attempted to serve defendant on September 1, 2007 at 12:38 p.m., on September 12, 2007 at 7:36 p.m., and on September 13, 2007 at 6:43 a.m., at which time he affixed the summons and complaint to the door of defendant's dwelling located at "A705 Howard Avenue, PRV HSE. Brooklyn, NY." By order entered November 27, 2012, the Civil Court denied the motion on the ground that defendant's conclusory allegation was insufficient to rebut the presumption of proper service afforded the process server's affidavit.

Thereafter, defendant moved, in effect, for leave to reargue and/or renew her prior motion. In support of the motion, defendant alleged that the address indicated in the process server's affidavit, "A705 HOWARD AVENUE," does not exist and that she had moved out of 705 Howard Avenue in March 2007, before she had allegedly been served on September 13, [*2]2007. By order entered January 17, 2013, the Civil Court denied defendant's motion, in effect, for leave to reargue and/or renew.

The process server's affidavit attesting to the "nail and mail" service of the summons and complaint constituted prima facie evidence of proper service (see Roberts v Anka, 45 AD3d 752 [2007]). Defendant's conclusory allegations in her moving papers seeking to vacate the default judgment were insufficient to rebut the presumption of proper service (see Irwin Mtge. Corp. v Devis, 72 AD3d 743 [2010]) and failed to adequately establish that she had not received the summons and complaint in time to defend the action (see CPLR 317; Burnett v Renne, 32 AD3d 449, 450 [2006]). In view of the foregoing, we do not reach the issue of whether defendant demonstrated a meritorious defense to the action (Burnett, 32 AD3d at 450). Consequently, the order entered November 27, 2012 is affirmed.

The appeal from so much of the order entered January 17, 2013 as denied the branch of the motion seeking, in effect, leave to reargue must be dismissed, as no appeal lies from the denial of reargument (see Barrafato v Franzitta, 308 AD2d 468 [2003]).

While a motion for leave to renew must be based on newly discovered facts, this requirement is a flexible one, and courts have the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for failing to submit the additional facts on the original motion (Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727, 728 [2009]). Here, defendant made no attempt to offer a reasonable justification for her failure to submit the new facts on the original motion, to wit, her alleged prior move from the premises served (which, in any event, she merely alleges without any documentary evidence in support thereof). As a result, the Civil Court properly denied the branch of defendant's motion seeking leave to renew.

Accordingly, the order entered January 17, 2013, insofar as reviewed, is affirmed.

Pesce, P.J., and Elliot, J., concur.

Solomon, J., taking no part.

Decision Date: December 22, 2014