Gigante v Veniopoulos

Supreme Court, New York County

Decided on May 4, 2026

Index No. 109386/2010

Robert R. Reed, J.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD

This action arises from an alleged breach of a lease and personal guarantee in connection with the sale of a bakery business located at 160 Prince Street, New York, New York. Plaintiff commenced this action on July 15, 2010, seeking damages for alleged failures to make lease payments, file corporate taxes, and make payment to plaintiff for consulting services. On March 14, 2011, this court granted plaintiff's default motion for defendants' failure to appear in the action (motion seq. no. 001) and, following an inquest hearing, awarded plaintiff judgment against defendants Andrew Veniopoulos and Vesuvios Bakery LLC in the amount of $141,445.29 (the "Order and Judgment").

In motion sequence no. 002, defendant Andrew Veniopoulos moves, by order to show cause, to vacate the judgment issued against him pursuant to CPLR 5015(a)(4), to dismiss the action, with prejudice, for lack of personal jurisdiction, and to stay of enforcement of the Order and Judgment pending determination of this application. Defendant asserts that he was unaware of the Order and Judgment issued against him until November 2025 because plaintiff allegedly failed to serve him with the summons and complaint. Defendant argues that such failure establishes the court's lack of personal jurisdiction over him and that the Order and Judgment was improperly issued. Alternatively, defendant argues that plaintiff failed to file proof of service of the summons and complaint and, thus, the time for defendant to answer had not begun to run when plaintiff filed her motion for a default judgment.

"CPLR 5015(a)(4) provides for vacatur of a judgment or order upon the ground of lack of jurisdiction to render the judgment or order" (Citimortgage, Inc. v Ramcharran, 240 AD3d 738, 739 [2d Dept 2025] [internal quotations and citations omitted]). A defendant moving to vacate a [*2]default pursuant to CPLR 5015(a)(4) must overcome the presumption raised by a process server's affidavit of service (Bank of New York Trust Company, N.A. v Herbin, 241 AD3d 1247, 1248 [2d Dept 2025] [internal quotations and citations omitted]).

Here, the court signed defendant's order to show cause on April 2, 2026, directing defendant to serve the order to show cause and accompanying papers upon plaintiff on or before April 9, 2026. Defendant's affidavit of service of the order to show cause states that, on April 2, 2026, plaintiff was served with the "ORDER TO SHOW CAUSE dated March 26, 2026" (NYSCEF doc. no. 30). No opposition has been on this motion and therefore no oral argument was held.

In this court's view, defendant's affidavit of service of the order to show cause is defective because it does not indicate that the court's conformed copy of the order, dated April 2, 2026, was served on plaintiff. Serving the proposed order to show dated March 26, 2026 would not provide plaintiff with proper notice of the April 30, 2026 return date and appearance for oral argument, or the deadline for plaintiff to submit opposition papers. Nor can the e-filed copy of the order to show cause be deemed good and sufficient service on plaintiff given that the attorney of record for plaintiff is different from the counsel for plaintiff named on the order to show cause. "The absence of proper service of an order to show cause deprives the court of jurisdiction to entertain the motion" (Serrao v Storage, 223 AD3d 927 [2d Dept 2024]).

Accordingly, it is hereby

ORDERED that defendant's order to show cause is denied, with leave to re-file.

DATE May 4, 2026

ROBERT R. REED, J.S.C.