Plaintiffs move for an order: (1) pursuant to CPLR 5015 (a) (1), vacating a default judgment which dismissed this action and restoring the action to the active calendar; (2) granting them leave to amend the action's caption to add Poland Growth Fund Limited as a party defendant; and (3) granting them leave to file and serve a copy of their complaint.

During the period extending from approximately 1995 through 1999, plaintiff Anna Hejka-Arczynska (Hejka) was involved with the defendant entities in founding, managing and raising capital for two investment funds which funded capital investments primarily in Poland.^[FN1] Hejka asserts that she and the other plaintiffs have claims against defendants, in connection with the two investment funds, for breach of contract, breach of fiduciary duty and violation of state and federal employment laws (the Claims).

Hejka asserts that in September 2005, she met with Kerry Connolly, an attorney with the law firm of Tuan, Connolly & Cho, LLP (TCC), to discuss the Claims. She retained Connolly, on a limited basis, pursuant to a letter agreement dated September 29, 2005. On October 6, 2005, [*2]Hejka commenced this action by filing a summons with notice, which was apparently prepared with Connolly's assistance. The summons with notice indicated that plaintiffs' attorney was "Anna He[j]ka-Arczynska pro se," and stated, twice, that Hejka's address was 10 Barn Swallow Boulevard, Marlboro, New Jersey 07746 (the Address) (Hejka Aff., Ex. 1, Ex. A). Connolly sent a copy of the summons with notice to defendants, on October 25, 2005, as part of a facsimile transmission. The parties thereafter engaged in discussions in an attempt to negotiate a settlement of the Claims. The discussions allegedly continued into January 2006, but were ultimately unsuccessful. In February 2006, Hejka allegedly arranged for a process server to serve defendants with a copy of the summons with notice.

On March 23, 2006, defendants served Hejka with a notice of appearance and demand for a complaint (the Demand), by mailing the Demand to Hejka at the Address. Defendants allegedly sent the Demand to Hejka with a cover letter which stated that the Demand was enclosed.^[FN2] The cover letter "carbon copied" Connolly, and defendants allegedly sent a copy of the cover letter to Connolly at TCC. Plaintiffs did not thereafter serve a complaint. On May 17, 2006, defendants allegedly served Hejka with a notice of motion to dismiss this action pursuant to CPLR 3012 (b), for failure to serve a complaint within 20 days after service of the Demand. Service was accomplished by mailing the Motion to Hejka at the Address. On May 24, 2006, defendants also allegedly served Hejka, by mail, with a copy of a statement requesting that this action be assigned to the Commercial Division (the Statement). Plaintiffs did not oppose, or appear in opposition to, defendants' motion to dismiss. By order issued on June 20, 2006, and entered on June 26, 2006, this court granted defendants' motion on default.

Plaintiffs defaulted twice, both in failing to serve defendants with a complaint within 20 days after service of a demand therefor and in failing to oppose defendants' motion to dismiss the action. A party moving to vacate a default must demonstrate both a reasonable excuse for the default and a meritorious cause of action or defense (see e.g. Easton v Associates Leasing, Inc., 24 AD3d 141, 143 [1st Dept 2005]). While the disposition of cases on the merits is favored, that "does not relieve a party seeking to vacate a default of the two-pronged burden of showing a meritorious claim or defense and a reasonable excuse for the default" (Goncalves v Stuyvesant Dev. Assoc., 232 AD2d 275, 276 [1st Dept 1996]; see also Dimitratos v City of New York, 180 AD2d 414, 414 [1st Dept 1992]).

In their moving papers, plaintiffs proffer, as an excuse for Hejka's failure to serve defendants with a complaint or to oppose defendants' motion to dismiss, that Hejka never received or had notice of the Demand, the Motion or the Statement. Hejka avers: that, at the time when she filed the summons with notice, she was living with her cousin, Elizabeth Ludomirska, at the latter's residence, which is located at the Address; that she left the United States on November 22, 2005, because of "financial hardship" and because her presence was required in Poland, for the purpose of attending to the medical needs of her father, who was critically ill; that she told her cousin that any mail regarding the Claims or this action should be forwarded to her [*3]attention immediately; that Connolly terminated her representation of Hejka, by letter dated January 24, 2006, leaving to Hejka the matter of serving defendants with a copy of the summons with notice; that, while Hejka was in Poland, she arranged for such service by means of a process server; that she monitored this matter, while she was in Poland, by contacting her cousin "countless times" in an effort to assure that she would be aware of any correspondence that might be mailed to her after defendants were served with the summons with notice; that, "[o]n each and every occasion that [Hejka] contacted [Ludomirska] she conveyed to [Hejka] that she had not received any correspondence from any of the defendants or their representatives"; that in the third week of June 2006, because Hejka had not heard from any of the defendants, she initiated contact with an attorney who became plaintiffs' current counsel, to inquire as to how she could proceed with this action; that, upon inquiry, plaintiffs' current counsel discovered that this action had been dismissed on June 20, 2006; and that, despite defendants' allegations that they sent various notices to her at the Address, her cousin "has not received anything regarding this lawsuit" (Hejka Aff., ¶¶ 4-5, 12-15, 17-20).

Ludomirska has submitted an affidavit in which she states: that Hejka lived with her from September 22, 2005 to November 22, 2005; that Hejka moved to Poland on November 22, 2005; that Hejka told her that Hejka had to relocate to Poland "because of financial, medical and other personal reasons"; that she was aware that Hejka had commenced this action in October 2005; that, before leaving the United States, Hejka asked her to inform Hejka about any mail she received concerning this action, and to forward it to Hejka's address in Poland; that, "[s]ince [Hejka] left the United States, she has contacted [Ludomirska] countless times via e-mail and telephone calls wherein she again reminded [Ludomirska] of her lawsuit and that she might receive mail either from various defendants or their attorneys regarding her lawsuit"; and that, "[t]o this day," she has not received any mail from anyone regarding this lawsuit (Ludomirska Aff., ¶¶ 3-8).

The proffered excuse does not constitute a reasonable excuse for Hejka's defaults. A plaintiff ordinarily "appears" in an action by commencing the action (see 1 NY Jur 2d, Actions § 86). Hejka commenced this action by filing a summons with notice which listed plaintiffs' attorney as "Anna He[j]ka-Arczynska pro se," and which gave the Address as Hejka's address. By means of a process server, Hejka allegedly served defendants with a copy of that same summons with notice in February 2006 (see Hejka Aff., ¶¶ 12-13, 17, 20). After a party has appeared pro se in an action, service may be effected upon that party by mail (see CPLR 2103 [b] [2]; [c]; [f] [1]). A properly completed and duly executed affidavit attesting to service by mail raises a presumption that a proper mailing, delivery and receipt occurred (see e.g. Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Northern v Hernandez, 17 AD3d 285, 286 [1st Dept 2005]). A party's merely conclusory denial of receipt, which is not substantiated by probative facts, is insufficient to rebut the presumption that delivery and receipt occurred (see e.g. Kihl v Pfeffer, 94 NY2d at 122; Northern v Hernandez, 17 AD3d at 286).

Plaintiffs do not dispute that defendants have submitted properly completed and duly executed affidavits attesting to service by mail upon Hejka, at the Address, of the Demand, the Motion and the Statement (see Sidman Aff., Exs. D, G, I). Although Hejka and her cousin deny having received those documents, their denials are merely conclusory and unsubstantiated by any allegation of probative facts. Thus, the denials are insufficient to rebut the presumption that the [*4]documents were properly mailed, delivered and received. Moreover, Hejka evidently concedes that she received the letter from Connolly, dated January 24, 2006, which was mailed to the Address, and which terminated Connolly's representation of Hejka (see Hejka Aff., ¶¶ 7, 12). That concession would, itself, appear to contradict both: (1) Hejka's assertion that "my cousin has not received anything regarding this lawsuit"; and (2) Ludomirska's assertions that (a) "I have not received any mail from anyone regarding [this] lawsuit" and (b) "[t]o this day I have not received any mail regarding this lawsuit at my residence in Marlboro, New Jersey" (Hejka Aff., ¶ 14; Ludomirska Aff., ¶¶ 7, 8).

In his reply affirmation, plaintiffs' current counsel does not dispute — and thus appears to concede — the validity of defendants' argument that Hejka's and her cousin's denials of receipt of the Demand, the Motion and the Statement cannot serve as the basis for a reasonable excuse, because the denials are merely conclusory. Rather, counsel asserts that "defendants simply ignore the fact that the plaintiff provided other reasonable explanations to substantiate her innocent neglect in not attending to her suit, namely, . . . she avers that she had to leave the United States for Poland to provide medical care to her father who became seriously ill during the month of November 2005" (Molander Reply Aff., ¶ 5).

However, plaintiffs have failed to establish that the illness of Hejka's father affords a reasonable excuse for her defaults. In her affidavit, Hejka states that she left the United States on November 22, 2005 because of "financial hardship," and also because "[her] father was critically ill and [her] presence was required in Poland to attend to his medical needs" (Hejka Aff., ¶ 15). As evidence of her father's "deteriorating medical condition," Hejka has submitted a copy of a purported medical record, written in Polish and dated February 21, 2006, together with a purported English translation of that document (id., ¶ 15; Ex. 4). The English translation of the medical record states, in relevant part, that the:

State Clinic Hospital in Gda sk certifies that citizen Hejka Witold . . . is . . . under the care of the Cardiac Out-Patient Clinic SPSK No. 1 AMG since 2001. Condition after myocardial infarction and angioplasty, atheromatosis, condition after cerebral ischaemia TIA in 2004, with atrial fibrillation, fixed since 2005; due to the risk of stroke he permanently takes Acecumarol.

(id., Ex. 4.) Hejka's affidavit states that her father's condition "has stabilized and [that she has] returned to the Unite[d] States and [is] able to remain in the United States in the prosecution of this matter" (id., ¶ 16). The affidavit does not indicate when Hejka returned to the United States.

The medical record clearly attests that Hejka's father suffered from certain serious medical conditions which began in 2001 and continued through February 21, 2006. However, the record does not adequately demonstrate either: (1) that there was a worsening of the father's medical condition in November 2005, which suddenly required Hejka's presence in Poland, for the purpose of attending to his medical needs; or (2) that the illness of her father was sufficiently critical — during the period commencing on or about November 22, 2005 and continuing until late June 2006, when Hejka allegedly initiated contact with the attorney who became plaintiffs' current counsel — as to excuse her failure to take any action that she was required to take, during that period, in connection with this action. Rather, Hejka's affidavit appears to indicate that, while she was busy caring for her father in Poland, she nonetheless arranged for defendants to be [*5]served with the summons with notice and monitored this action by contacting her cousin, but that she took no steps to advance the action because, "[o]n each and every occasion that I contacted my cousin she conveyed to me that she had not received any correspondence from any of the defendants or their representatives" (id., ¶ 18). Accordingly, plaintiffs have failed to establish that the illness of Hejka's father constituted a reasonable excuse for her defaults in failing to serve defendants with a complaint, and in failing to oppose defendants' motion to dismiss.

Plaintiffs' counsel also asserts, in his reply affirmation, that Hejka's defaults are excusable because Connolly terminated her representation of Hejka while Hejka was in Poland, and because "[t]he neglect that the Plaintiff engaged in can only be described as innocent neglect since she was a pro se Plaintiff and unaware of the procedural requirements and the consequences [of] not meeting those requirements" (see Molander Reply Aff., ¶¶ 3, 10 [emphasis in original]).

As plaintiffs correctly assert, procedural rules will generally be applied more liberally where a plaintiff represents herself pro se (see e.g. Montes v Manufacturers Hanover Trust Co., 197 AD2d 357, 358 [1st Dept 1993]). However, in the letter dated January 24, 2006, which Hejka evidently concedes that she received, Connolly wrote:

This letter is to reiterate that you have only until February 3, 2006 to serve a Complaint on the defendants in the action you filed on October 6, 2005. February 3rd is the 120th day from October 6, 2005. If you do not effect valid service by that date, the statute of limitations will pass and the court may dismiss the action. YOU WILL BE PERMANENTLY BARRED FROM BRING[ING] ANY NEW ACTION.

I have repeatedly advised you of this deadline, most recently via email on January 11, 2006, a copy of which is enclosed herewith. As I told you in October, I would not appear for you in court unless I received information sufficient to evaluate this matter. I have repeatedly asked you for this material, but despite your assurances [that] I would receive the material, it has not been forthcoming. Accordingly, I cannot and will not represent you in litigation and will not appear for you in court in your action against the Soros entities. I therefore strongly advise that you retain counsel to serve and file a complaint without any delay. However, getting a new lawyer will not extend the deadline for service. YOU MUST ACT IMMEDIATELY.

(Hejka Aff., Ex. 2 [emphasis in original].) Thus, it appears: that Connolly warned Hejka, in the clearest terms, that the failure to timely serve a complaint might permanently bar prosecution of the Claims;^[FN3] that Hejka disregarded Connolly's advice that Hejka "retain counsel to serve and file [*6]a complaint without any delay"; and that Connolly terminated her representation of Hejka precisely because Hejka repeatedly failed to follow through on her assurances that she would furnish Connolly with the information and materials that Connolly needed in order to evaluate the merit of the Claims. In view of those circumstances, plaintiffs' counsel's argument that Hejka's defaults are excusable on the ground that she was a pro se plaintiff, who was "unaware of the procedural requirements and the consequences [of] not meeting those requirements," is not persuasive.

Inasmuch as plaintiffs have failed to proffer a reasonable excuse for their defaults in serving a complaint and in failing to oppose defendants' motion to dismiss the action, the branch of plaintiffs' motion which seeks to vacate the default judgment that was previously entered is denied, without regard to whether plaintiffs have established that they have a meritorious cause of action (see e.g. Legend Travel & Tours, Inc. v Continental Airlines, Inc., 24 AD3d 112, 112 [1st Dept 2005]; Silverman & Weinraub v Gillon, 1 AD3d 142, 143 [1st Dept 2003]; Gerlin v J. Homann Trucking, 303 AD2d 262, 262 [1st Dept 2003]; Rios v Skaters World Roller Rink Inc., 246 AD2d 882, 882 [3d Dept 1998]; Pilipshen v Pilipshen, 94 AD2d 699, 700 [2d Dept 1983]). Accordingly, the other branches of plaintiffs' motion — which seek leave to amend the caption to add Poland Growth Fund Limited as a party defendant, and leave to file and serve a complaint — are denied as moot.

For the foregoing reasons, it is hereby

ORDERED that plaintiffs' motion is denied in its entirety.

Dated: August 30, 2007

ENTER:

_______________/s/____________________

J.S.C.