Talley v Peck

[*1] Talley v Peck 2015 NY Slip Op 51249(U) Decided on August 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2014-997 K C

Sinina Talley, Appellant, August 12, 2015

against

Robert Peck and OAKBROOK SALES CORP.-KITCHEN KUZIN, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 27, 2014. The order denied plaintiff's motion to vacate a prior order of the same court dated August 16, 2012 which, among other things, had granted defendants' motion for the restitution of funds collected in satisfaction of a default judgment, subsequently vacated, and to dismiss the action.

ORDERED that the order entered February 27, 2014 is affirmed, without costs; and it is further,

ORDERED that the matter is remitted to the Civil Court with a direction to the Clerk of the Small Claims Part to amend all prior proceedings and papers in this matter to reflect defendants' true names as "Robert Peck and Oakbrook Sales Corp.-Kitchen Kuzin."

Plaintiff Sinina Talley commenced this small claims action on March 14, 2007 to recover the sum of $5,000 for an allegedly defective delicatessen case and related damages stemming therefrom. Plaintiff named as the defendant "Robert Peck Doing Business as Oakbrook Sales Corp.-Kitchen Kuzin." As it is clear from defendants' papers in this action that Robert Peck and Oakbrook Sales Corp.-Kitchen Kuzin are separate entities, the Clerk of the Small Claims Part is directed to amend all prior proceedings and papers in this matter to reflect defendants' true names as "Robert Peck" and "Oakbrook Sales Corp.-Kitchen Kuzin" (see CCA 1814), and the caption of the appeal has been amended accordingly.

Upon defendants' failure to appear, a default judgment was entered on April 19, 2007 for the total sum of $3,945. On July 13, 2007, defendants moved to vacate the default judgment. By order dated July 30, 2007, the Civil Court denied defendants' motion. By decision and order dated May 22, 2009, this court reversed the July 30, 2007 order and remitted the matter to the Civil Court for a new determination following a traverse hearing (Talley v Peck, 23 Misc 3d 141[A], 2009 NY Slip Op 51028[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). By order dated August 26, 2009, the Civil Court granted defendants' motion to vacate the judgment. By motion dated October 1, 2009, defendants moved, pursuant to CPLR 5015 (d), for restitution of the funds which had been collected in satisfaction of the judgment and for dismissal of plaintiff's action. By order entered December 5, 2012, the Civil Court granted defendants' unopposed motion. Thereafter, by order to show cause dated February 7, 2014, plaintiff moved to vacate the December 5, 2012 order and to restore the case to the trial calendar. In an affidavit in support of her motion, plaintiff asserted that "I do not owe any money" and that "I was not aware of any case pending against me. No knowledge at all. Never served." By order entered February 27, 2014, plaintiff's motion was denied.

Upon a review of the record, we find that the Civil Court did not improvidently exercise [*2]its discretion in denying plaintiff's motion since plaintiff failed to present a reasonable excuse for her default in submitting opposition to defendants' October 1, 2009 motion. Her unsubstantiated excuse of nonreceipt was insufficient to rebut the proof that defendants' motion papers had been properly mailed and the presumption of receipt (see Platonov v Sciabarra, 305 AD2d 651 [2003]; Matter of Aetna Life & Cas. Co. v Walker, 255 AD2d 381 [1998]). Accordingly, the order entered February 27, 2014 is affirmed.

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

Decision Date: August 12, 2015