In July 2022, nonparty Infinite Reality acquired nonparty ReKT Global Inc. to form ReKTGlobal Holding, LLC (ReKT). Previously, ReKT Global entered into an engagement agreement with Cowen, under which Cowen agreed to serve as its financial advisor and assist in sourcing a buyer.

In December 2022, ReKT and Cowen entered into a settlement agreement that included mutual releases of all claims. The settlement agreement required ReKT to pay $3 million to Cowen by December 31, 2023. (NYSCEF No. 47 at 2-3.) ReKT made no payment.

Cowen then brought this action by CPLR 3213 motion for summary judgment in lieu of complaint (mot seq 001). In July 2024, this court granted Cowen's CPLR 3213 motion. (See NYSCEF No. 19 [order granting summary judgment).)

Defendant now moves to vacate this court's July 2024 order under CPLR 5015 (a) (1) and [*2](a) (4).^[FN1] The motion is denied.

The court begins with CPLR 5015 (a) (4). As a nondiscretionary basis for vacatur, that prong the statute must be addressed before discretionary vacatur under CPLR 5015 (a) (1). (See SOS Capital v Recycling Paper Partners of PA, LLC, 220 AD3d 25, 31 [1st Dept 2023].)

In deciding whether to vacate a judgement under CPLR 5015 (a) (4), the court must determine whether it had jurisdiction over the defendant. ReKT contends that Cowen failed to serve ReKT properly. But Cowen filed an affidavit of service reflecting service on ReKT. A process server's affidavit of service gives rise to a presumption of proper service (Chachere v Poulos, 234 AD3d 920, 921 [2d Dept 2025].)

ReKT fails to rebut the presumption of proper service. ReKT asserts that it never received notice of service from its registered agent. But it supports this argument only with conclusory statements that it did not receive the service papers. (See NYSCEF No. 26 at 3.) And in any event, "service of process was deemed complete when defendant's registered agent . . . was served, regardless of whether it ultimately reached defendant." (Salish Lodge LLC v Gift Mgt. Inc., 192 AD3d 410, 411 [1st Dept 2021].)

ReKT has not shown that service was improper. The branch of the motion to vacate this court's decision under CPLR 5015 (a) (4) is denied.^[FN2]

To vacate a judgment under CPLR 5015 (a) (1), the defendant must show "(1) a reasonable excuse for the default; and (2) a meritorious defense to the action." (SOS Capital, 220 AD3d at 38.) The court considers first whether ReKT has a meritorious defense to this action.

1. Cowen initiated this action by motion for summary judgment in lieu of complaint under CPLR 3213. A CPLR 3213 motion may be brought on "an instrument for the payment of money only or upon any judgment." ReKT contends that Cowen's motion was improperly based on the settlement agreement, which (assertedly) is not an instrument for the payment of money only. ReKT argues that the settlement agreement payment is not unconditional, and that the amount owed is uncertain.

The court concludes, however, that the settlement agreement required no additional performance other than ReKT's payment and that the amount owed ($3 million) is delineated in the settlement agreement. (NYSCEF No. 47.) That the settlement agreement provides for mutual release of claims does not alter the fact that the only performance due was ReKT's payment. (See [*3]Krape v PDK Labs, Inc., 34 AD3d 751, 752-53 [2d Dept 2006] [holding that a settlement agreement providing for release of claims in exchange for money qualifies as an instrument for the payment of money only].) Accordingly, the settlement agreement qualifies for accelerated resolution under CPLR 3213.

2. ReKT next argues that Cowen did not make out a prima facie case for summary judgment, because it did not provide bank statements or other documentary evidence. According to ReKT, Cowen submitted a "statement of non-payment from its Managing Director, who failed to attest that he has sufficient foundational knowledge regarding Cowen's receipt of external payments" and a hearsay "letter authored by TD Bank that was not addressed to any of ReKT's employees." (NYSCEF No. 25 at 13.) But the managing director's affidavit reflects that it was made on personal knowledge. That affidavit, together with the TD Bank letter attached to the affidavit, are sufficient to establish a prima facie case for summary judgment.

3. Finally, ReKT asserts that the settlement agreement is voidable due to fraud in the inducement. But ReKT does not identify specific facts that might support this contention of fraud, let alone provide evidence to support its factual claims.

ReKT has not established that it has a potentially meritorious defense to Cowen's claims. This court therefore does not reach whether ReKT has established a reasonable excuse for its default.

Accordingly, it is

ORDERED that ReKT's motion to vacate this court's July 3, 2024, order is denied.