J. Kings Food Serv. Professionals, Inc. v Ocean Garden Cafe, Inc.
Annotate this CaseDecided on April 12, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: April 12, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-1034 S C
J. Kings Food Service Professionals, Inc., Appellant,
against
Ocean Garden Cafe, Inc., Steven Burrell, Defendants, -and- Joseph A. Grimaldi, Respondent.
Appeal by plaintiff from an order of the District Court, Suffolk County
(J. Flanagan, J.), entered June 2, 2004, which granted defendant Joseph A. Grimaldi's motion to vacate a default judgment.
Order unanimously reversed without costs and defendant Joseph A. Grimaldi's motion to vacate the default judgment denied. [*2]
To vacate a default judgment pursuant to CPLR 5015 (a), a defendant must demonstrate a reasonable excuse for the default and a meritorious defense (Silverman v Deutsch, 283 AD2d 478 [2001]). In the case at bar, defendant Joseph A. Grimaldi claimed that the person served on May 28, 1998, as described in the process server's affidavit of service, does not match any person in his house. Defendant avers that his wife has blond hair, was never 131 to 160 pounds, and that no one lived in the premises or was present at his house. Where, as here, the process server is deceased at the time of the motion, his affidavit of service, if not conclusory and devoid of sufficient detail, shall be admitted in evidence as prima facie proof of service (Smid v Lombard, 83 AD2d 877 [1981]). The affidavit of service alleged personal service pursuant to CPLR 308 (2) by delivering a summons to a person of suitable age and discretion at the dwelling of defendant and by mailing the summons to defendant at his last known residence, to wit, 1 Dorchester Court, Farmingville, New York. The process server described the person served as "Jane Doe," a family member who refused to give her name, approximately 36 - 50 years old, 131 to 160 pounds, 5' 4" - 5' 8" tall, white, with dark brown hair. The driver's license of defendant's wife, which was attached to plaintiff's opposing papers, establishes that she was 36 years of age at the
time of service, and described her as 5 feet 5 inches tall. The color of defendant's wife's hair and her weight are minor discrepancies which are subject to change.
Service under CPLR 308 (2) is complete, where the mailing itself is proper (European American Bank v Abramoff, 201 AD2d 611 [1994]) and proof thereof is filed with the court (see UDCA 402 [b]; 410 [b]). Defendant was served by mail twice within the requisite time period, once by the process server and a second time by an employee in plaintiff's attorney's office (see CPLR 3215 [g] [3]). In view of the foregoing, defendant's bald denial of receipt of process served by mail is insufficient to rebut the inference of proper mailing which may be drawn from the duly executed affidavits of service. Defendant, in a carefully worded affidavit, does not deny that the address referred to in the affidavit of service is his residence. The motor vehicle abstract of his wife's driver's license lists said address as her residence. In view of the foregoing, the affidavit of service contained the requisite factual and descriptive information to establish the propriety of service prima facie and defendant's conclusory challenges failed to rebut the affidavit's veracity and content. Thus, defendant's motion to dismiss on the ground of improper service should have been denied (see Neighborhood Partnership Housing Development Fund Corp. v Okolie, 2003 NY Slip Op 50707[U] [App Term, 2d & 11th Jud Dists]).
Finally, we note that defendant's bare assertions that he did not recall signing a personal guaranty of the debt of the defendant corporation and that he would have included the debt in his bankruptcy filing lack substance and are insufficient to establish a meritorious defense to the action.
Decision Date: April 12, 2005
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
