| Bunting v Cervera |
| 2018 NY Slip Op 51871(U) [62 Misc 3d 128(A)] |
| Decided on December 13, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Frank Cervera, appellant pro se. Law Offices of Kenneth L. Bunting (Kenneth L. Bunting of counsel), respondent pro se.
Appeal from an order of the Justice Court of the Town of Minisink, Orange County (Paul Lattimer, J.), dated July 13, 2017. The order denied defendant's motion to vacate a judgment of that court entered December 22, 2016 upon defendant's failure to appear at trial.
ORDERED that the order is affirmed, without costs.
After defendant failed to appear on the trial date of this small claims action to recover an attorney's fee in the principal sum of $712.50, the Justice Court informed defendant of his default and offered defendant the opportunity to reopen the hearing if there had been "extenuating circumstances" for the default. Defendant requested that the matter be reopened on the ground that he had not received notice of the hearing. His request was denied, and, on December 22, 2016, a default judgment was entered against defendant in the total sum of $1,027.50. Defendant appeals from an order of the Justice Court which denied his motion to vacate the default judgment pursuant to CPLR 317 and 5015 (a) (1) and (4).
The Justice Court notified defendant at his residence, by ordinary first-class mail and by certified mail with return receipt requested, of the pendency of this small claims action and his obligation to appear in court on the date specified therein (see UJCA 1803). After the expiration of 21 days, the first-class mail had not been returned as undeliverable. Defendant's conclusory denial of service failed to rebut the statutory presumption that he had received notice of the claim (see UJCA 1803 [a]; see also Alterman v Adelphi Academy of Brooklyn, 53 Misc 3d 152[A], 2016 NY Slip Op 51703[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Stoessel v Allstate Ins. Co., 28 Misc 3d 129[A], 2010 NY Slip Op 51244[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, defendant's claim that the Justice Court failed to acquire personal jurisdiction over him (see CPLR 5015 [a] [4]) is without merit.
A defendant seeking to vacate a default pursuant to CPLR 317 must demonstrate that he or she "did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" (Benchmark Farm, Inc. v Red Horse Farm, LLC, 162 AD3d 836, 837 [*2][2018]; see also Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142 [1986]; Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d 730, 731 [2016]). A defendant seeking the vacatur of a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141-142; Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d at 731). Defendant's conclusory denial of service was inadequate to establish either a lack of actual notice of the action in time to defend, or that he had a reasonable excuse for his default (see Alterman v Adelphi Academy of Brooklyn, 53 Misc 3d 152[A], 2016 NY Slip Op 51703[U], *1; see also Williamson v Marlou Cab Corp., 129 AD3d 711, 713-714 [2015]). We therefore conclude that the denial of defendant's motion to vacate the default judgment rendered substantial justice between the parties (see UJCA 1804, 1807). In view of the foregoing, it is unnecessary to consider whether defendant sufficiently established the existence of a potentially meritorious defense to the action (see Bank of Am., N.A. v Welga, 157 AD3d 753, 754 [2018]; Bank of Am., N.A. v Agarwal, 150 AD3d 651, 652 [2017]; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566 [2011]; Pappas v Sunrise Volkswagen, Inc., 48 Misc 3d 133[A], 2015 NY Slip Op 51070[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).
We reach no other issue.
Accordingly, the order is affirmed.
TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.