Katzman v Soman

[*1] Katzman v Soman 2005 NY Slip Op 51600(U) [9 Misc 3d 131(A)] Decided on September 30, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: September 30, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
2004-1449 Q C

Rivka Katzman, Appellant,

against

Sean Soman, Respondent, -and- Judy Soman, Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy Dufficy, J.), entered July 6, 2004. The order, insofar as appealed from, as limited by plaintiff's brief, granted defendant Sean Soman's motion to, inter alia, vacate the default judgment entered against him and restore the action insofar as asserted against him to the trial calendar.

Order unanimously reversed without costs and motion by defendant Sean Soman to, inter alia, vacate the default judgment entered against him and restore the action insofar as asserted against him to the trial calendar denied.

Plaintiff commenced the instant action against defendants, her former tenants, to recover unpaid rent, fees incurred when defendants' checks were returned unpaid and legal fees. After defendant Judy Soman put in a pro se answer and defendant Sean Soman failed to answer, plaintiff moved for summary judgment and/or entry of a default judgment. The court granted plaintiff's unopposed motion for summary judgment and, after an inquest, plaintiff was awarded a judgment in the sum of $15,870 plus interest. Thereafter, the court granted a motion by defendant Sean Soman to, inter alia, vacate the judgment insofar as entered against him, finding that defendant Sean Soman demonstrated the existence of a meritorious defense and a reasonable excuse for his default, and this appeal ensued. [*2]

"A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense" (Dominguez v Carioscia, 1 AD3d 396, 397 [2003]). "While the determination as to what constitutes a reasonable excuse for a default is generally within the sound discretion of the trial court, reversal is warranted where the trial court improvidently exercises its discretion" (Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650, 651 [2001]).

In the instant action, while defendant Sean Soman stated that he was never served, his bald denial was insufficient to rebut the presumption of proper service raised by the affidavit of service (see Carrenard v Mass, 11 AD3d 501 [2004]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Furthermore, even if Sean Soman's motion were treated as one made pursuant to CPLR 317 (see Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]), he failed to demonstrate with any degree of specificity that he did not personally receive notice of the summons in time to defend the action (Carrenard v Mass, 11 AD3d 501, supra; 96 Pierrepont v Mauro, 304 AD2d 631 [2003]). We note that Sean Soman defaulted both in appearing and opposing plaintiff's summary judgment motion. In addition, he failed to set forth sufficient facts to demonstrate the existence of a meritorious defense. As a result, the court improvidently exercised its discretion and the motion by Sean Soman should have been denied.
Decision Date: September 30, 2005