Wellcourt Holding, LLC v Schachter

[*1] Wellcourt Holding, LLC v Schachter 2015 NY Slip Op 51874(U) Decided on December 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : SOLOMON, J.P., WESTON and ELLIOT, JJ.
2014-1185 K C

Wellcourt Holding, LLC, Respondent,

against

Norman Schachter, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 28, 2014. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action in July 1996 to recover the principal sum of $10,770 for breach of a lease agreement. The affidavit of service states that service was effectuated on August 6, 1996, by serving Renee Goldman, a person of suitable age and discretion, at defendant's actual place of business located at 139 E. 57th Street, New York, New York, and by mailing the summons and complaint to the same address. A default judgment was entered against defendant on September 27, 1996. By order to show cause dated March 14, 2014, defendant moved to vacate the default judgment, claiming that he had not been served. The Civil Court denied defendant's motion.

Defendant's conclusory denial of service was insufficient to rebut the prima facie proof of proper service set forth in the process server's affidavit of service (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]; ACT Props., LLC v Garcia, 102 AD3d 712 [2013]; LR Credit 22, LLC v Monaghan, 38 Misc 3d 129[A], 2012 NY Slip Op 52395[U] [App Term, 9th & 10th Jud Dists 2012]). Consequently, defendant failed to establish a basis to vacate the default judgment pursuant to CPLR 5015 (a) (4). Additionally, defendant failed to establish a reasonable excuse for his default under CPLR 5015 (a) (1). Furthermore, as defendant's motion was made more than five years after the default judgment had been entered, defendant is not entitled to relief pursuant to CPLR 317. In view of the foregoing, we need not determine whether defendant demonstrated a potentially meritorious defense (see Deutsche Bank Natl. Trust Co., 102 AD3d at 724; ACT Props., LLC, 102 AD3d at 712).

Accordingly, the order is affirmed.

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

Decision Date: December 09, 2015