Slomin's, Inc. v Mehta

[*1] Slomin's, Inc. v Mehta 2015 NY Slip Op 50767(U) Decided on May 6, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2014-81 K C

Slomin's, Inc., Appellant,

against

Sucharita Mehta, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 2, 2014. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, defendant's motion to vacate the default judgment is denied and the default judgment is reinstated.

In this action to recover for breach of alarm installation and monitoring agreements, a default judgment was entered upon defendant's failure to appear or answer. In support of her motion to vacate the default judgment, defendant alleged that she had not been served properly. The Civil Court granted defendant's motion.

Defendant's bald assertion that she was "not properly served" was insufficient to rebut the presumption of proper service raised by the affidavit of service (see CPLR 5015 [a] [4]; Carrenard v Mass, 11 AD3d 501 [2004]; Capital One Bank v Lundy, 16 Misc 3d 134[A], 2007 NY Slip Op 51512[U] [App Term, 2d & 11th Jud Dists 2007]). Even were defendant's motion treated as one made pursuant to CPLR 317, defendant failed to demonstrate that she "did not personally receive notice of the summons in time to defend" the action (CPLR 317; see Carrenard, 11 AD3d at 501). Inasmuch as defendant failed to present a reasonable excuse for her default, her motion to vacate the default judgment should have been denied (CPLR 5015 [a] [1]).

Accordingly, the order is reversed, defendant's motion to vacate the default judgment is denied, and the default judgment is reinstated.

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

Decision Date: May 06, 2015