theCPLRblog

5015(a)(3); 317; 2005; Renewal Judgment

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default...
(2) newly-discovered evidence...
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 317

CPLR § 2005

Matter of Travelers Ins. Co. v Rogers, 2011 NY Slip Op 03729 (App. DIv., 1st 2011)

Supreme Court abused its discretion in refusing to vacate its prior order granting a permanent stay of arbitration of respondents Rogers and Westwater's uninsured motorist claim, which was granted upon their failure to appear at the petition hearing or to submit papers in opposition. Vacatur should have been granted on the ground of "fraud, misrepresentation, or other misconduct of an adverse party" (CPLR 5015[a][3]). A review of the record in this case reveals several potential instances of intentional and material misrepresentations of fact by petitioner, which, at least in part, may have formed the basis of Supreme Court's decision and order to permanently stay arbitration. Hence, it was an abuse of discretion to conclude that the failure to proffer a reasonable excuse precluded relief pursuant to CPLR 5015(a)(3), since that section does not require such a showing (cf. CPLR 5015 [a] [1]; see Shouse v Lyons, 4 AD3d 821, 822 [2004]). To the extent that some of respondents' allegations of fraud, misrepresentation or other misconduct are not conclusively established by the evidence in the record, they present issues of fact which should not be determined without holding a hearing (Readick v Readick, 80 AD3d 512, 513 [2011]; see also Tonawonda Sch. Emples. Fed. Credit Union v Zack, 242 AD2d 894, 894-95 [1997]).

Olivaria v Lin & Son Realty, Corp., 2011 NY Slip Op 03655 (App. Div., 1st 2011)

Relief under CPLR 5015(a)(1) was properly denied. The record shows that Lin did not receive process because it failed to maintain a current address on file with the Secretary of State for 18 years (see On Assignment v Medasorb Tech., LLC, 50 AD3d 342 [2008]; Business Corporation Law § 408).

The Supreme Court should not have concluded, however, that Lin's request for relief under CPLR 317 was untimely. The statute permits a defendant who has been "served with a summons other than by personal delivery" and has not appeared to defend the action upon a finding of the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). A defendant so served may be allowed to defend the action "within one year after [such defendant] obtains knowledge of entry of the judgment, but in no event more than five years after such entry . . ." (id.)^[FN1]. In making a CPLR 317 motion, a defendant does not have to come forward with a reasonable excuse for its default (see Pena v Mittleman, 179 AD2d 607, 609 [1992]).

By regarding the February 4, 2003 order as an entered judgment, the court reached the conclusion that the statutory five-year period had expired. This was error. "A judgment is entered when, after it has been signed by the clerk, it is filed by him" (CPLR 5016[a]). Unlike the 2003 order, the 2009 judgment was duly signed and entered by the County Clerk. Accordingly, the motion was timely because August 20, 2009 is the date of entry from which Lin's time is to be measured.

The lease between Lin and the injured plaintiff's employer provided for heating through perimeter ducts and made no mention of portable heaters. Lin's president states by affidavit that the company had no knowledge of the tenant's use of portable heaters. Thus, Lin has demonstrated, prima facie, that it has a meritorious defense to plaintiffs' claims. Moreover, it does not appear that Lin deliberately attempted to avoid notice of this action (see e.g. Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138, 143 [1986]). In the exercise of discretion, we therefore grant Lin's motion to vacate the default judgment pursuant to CPLR 317.

Casali v Cyran, 2011 NY Slip Op 03791 (App. Div., 2nd 2011)

To vacate his default, the plaintiff was required to demonstrate a reasonable excuse for the default and potentially meritorious opposition to the motion (see CPLR 5015[a]; Legaretta v Ekhstor, 74 AD3d 899; Rivera v Komor, 69 AD3d 833; Nowell v NYU Med. Ctr., 55 AD3d 573). The plaintiff's excuse for failing to oppose the motion of the defendant Daniel J. Cyran for summary judgment dismissing the compaint insofar as asserted against Cyran can only be classified as law office failure. Although the Supreme Court has the discretion to excuse a default resulting from law office failure (see CPLR 2005), here, the plaintiff's attorney, in his affirmation, admitted that there was "no excuse, reasonable or otherwise." Additionally, the plaintiff failed to establish that he had potentially meritorious opposition to the motion (see Bollino v Hitzig, 34 AD3d 711). Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate the prior order granting Cyran's motion for summary judgment dismissing the complaint insofar as asserted against Cyran.

n Tend Masoers Dist. Council Welfare Fund v Diamond Constr. & Maintenance, Inc., 2011 NY Slip Op 03815 (App. Div., 2nd 2011)

In an action for leave to enter a renewal judgment pursuant to CPLR 5014, nonparty Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 22, 2010, which denied its motion pursuant to CPLR 5015(a)(4) to vacate a renewal judgment of the same court dated January 11, 2010 on the ground that the Supreme Court lacked jurisdiction to issue the renewal judgment because Deutsche Bank National Trust Company was not joined as a necessary party.
ORDERED that the order is affirmed, with costs.
"Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants" (CPLR 1001[a]). This statute "limit[s] the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of nonparties" (Matter of Castaways Motel v Schuyler, 24 NY2d 120, 125; see Spector v Toys "R" Us, Inc., 12 AD3d 358, 359).
Here, the Supreme Court properly found that nonparty Deutsche Bank National Trust Company did not need to be joined in the instant action in order to accord complete relief to the parties, and that Deutsche Bank National Trust Company was not inequitably affected by the renewal judgment.
In an action for leave to enter a renewal judgment pursuant to CPLR 5014, nonparty Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Richmond County (Minardo, J.), dated July 22, 2010, which denied its motion pursuant to CPLR 5015(a)(4) to vacate a renewal judgment of the same court dated January 11, 2010 on the ground that the Supreme Court lacked jurisdiction to issue the renewal judgment because Deutsche Bank National Trust Company was not joined as a necessary party.

s

CPLR § 317: Court extends one-year limitation

CPLR § 317 Defense by person to whom summons not personally delivered

Stern v Warren George, Inc., 2011 NY Slip Op 01829 (App. Div. 2nd 2011)

The Supreme Court properly granted that branch of the respondent's motion which was pursuant to CPLR 317 to vacate the judgment entered upon its failure to appear or answer (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454). The Supreme Court providently exercised its discretion in extending the one-year limitation period set forth in CPLR 317 in light of the potentially meritorious defense asserted by the respondent, the short delay after the limitation period expired in moving to vacate the judgment, and the public policy of determining actions on the merits (see CPLR 2004; Girardo v 99-27 Realty, LLC, 62 AD3d 659, 660; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 629-630; Allen v Preston, 123 AD2d 303, 303-304; Levine v Berlin, 46 AD2d 902, 903).

CPLR R. 2106: can't be a party

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Morrison Cohen LLP v Fink, 2011 NY Slip Op 00779 (App. Div., 1st 2011)

To successfully oppose a motion for leave to enter a default judgment, a defendant must demonstrate a reasonable excuse for the default and a meritorious defense. As a party to the action, although an attorney by profession, defendant was required to submit an affidavit in opposition to plaintiff's motion for a default judgment. His submission of an affirmation instead of an affidavit was improper, "and its contents [were correctly] disregarded by the Supreme Court, thereby rendering the opposing papers insufficient to defeat the plaintiff's motion" (Pisacreta v Minniti, 265 AD2d 540 [1999]). Defendant's papers were deficient for the additional reason that the affidavit of the postal service worker on which he relied to demonstrate the inadequacy of "nail and mail" service pursuant to CPLR 308(4) was notarized by defendant himself, a party to the action.

Defendant is not entitled to relief, in the alternative, under CPLR 317 since he has failed to demonstrate that he "did not personally receive notice of the summons in time to defend" (id.; see Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517 [2005]).

The bold is mine.

CPLR 317, 5015(a)(1)(3), and 3215(f)

CPLR R. 5015 Relief from judgment or ordersummons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR § 3215 Default judgment

Jackson v Professional Transp. Corp., 2011 NY Slip Op 00650 (App. Div., 2nd 2011)

The plaintiff correctly contends that the Supreme Court erred in granting the motion of the defendant Professional Transportation Corp. (hereinafter the defendant), inter alia, to vacate an order dated October 27, 2008, and the judgment entered December 10, 2009, upon the defendant's default. CPLR 317 allows a court to vacate a default where service has been made upon a defendant by means other than personal delivery and where the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317). Here, by its own admission, the defendant received the summons and complaint well before the motion for a default judgment was made and in ample time to seek leave to serve a late answer. Accordingly, the defendant failed to establish that it did not receive the summons in time to defend within the meaning of the statute (see Gartner v Unified Windows, Doors & Siding, Inc., 71 AD3d 631, 632; SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604, 605; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d 516, 517-518; Fleetwood Park Corp. v Jerrick Waterproofing Co., 203 AD2d 238, 239; Essex Credit Corp. v Tarantini Assoc., 179 AD2d 973, [*2]974).

Additionally, the defendant failed to demonstrate a reasonable excuse under CPLR 5015(a)(1) for its pattern of willful default and neglect (see Campbell-Jarvis v Alves, 68 AD3d 701, 702; Roussodimou v Zafiriadis, 238 AD2d 568, 569; Merwitz v Dental Care Sers., 155 AD2d 748, 750), and its unsubstantiated claims that the default was occasioned by the conduct of its insurance broker or its liability carrier are unavailing (see Gartner v Unified Windows, Siding & Doors, Inc., 71 AD3d at 632; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672; Majestic Clothing Inc. v East Coast Stor., LLC, 18 AD3d at 518). Although the question of whether the defendant asserted a potentially meritorious defense need not be reached in view of the foregoing (see Burnett v Renne, 32 AD3d 449,450), we note, in any event, that the defendant's submissions failed to proffer a potentially meritorious defense.

The defendant similarly failed to establish that the default judgment was procured through fraud or misrepresentation within the meaning of CPLR 5015(a)(3) (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 69-70). Likewise, the verified complaint satisfied the plaintiff's obligation to file proof of the facts constituting the claim with the court pursuant to CPLR 3215(f), and even if the verified complaint did not satisfy the requirements of CPLR 3215(f), the default judgment would not have been rendered a nullity (see Araujo v Aviles, 33 AD3d 830; Coulter v Town of Highlands, 26 AD3d 456, 457).

The bold is mine  I'll pull the cases cited in the last line some other time.  If I'm interested, you should be too.

 

 

Stuff I meant to post but didn't feel like it at the time.

 

Bonik v Tarrabocchia, 2010 NY Slip Op 07878 (App. Div., 2nd 2010)

The plaintiff failed to rebut the defendant's sworn statement that he never received a copy of the order entered July 1, 2004, which, inter alia, scheduled a conference for September 29, 2004. The assertion of the plaintiff's attorney that she personally served that order upon the then- pro se defendant was not supported by a proper affidavit of service or other proof of service (see Lambert v Schreiber, 69 AD3d 904). A written statement prepared by the plaintiff's attorney on August 4, 2004, was neither sworn to before a notary public nor subscribed and affirmed to be true under the penalties of perjury and, thus, did not constitute competent evidence of service (see CPLR 2106; Moore v Tappen, 242 AD2d 526). Without notice of the conference, the defendant's "default" was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376; Tragni v Tragni, 21 AD3d 1084, 1085; cf. Hwang v Tam, 72 AD3d 741, 742). In this situation, vacatur of the default is required as a matter of law and due process, and no showing of a potentially meritorious defense is required (see Pelaez v Westchester Med. Ctr., 15 AD3d at 376; Kumer v Passafiume, 258 AD2d 625, 626). Consequently, the subsequent inquest, the judgment entered March 21, 2006, and the order dated July 16, 2007, were all nullities, and must be vacated. In addition, there was no competent proof that the plaintiff served the defendant with notice of the inquest, a copy of the judgment entered March 22, 2006, with notice of entry, or a copy of the order entered July 20, 2007, with notice of entry.

Rizzo v Kay, 2010 NY Slip Op 09493 (App. Div., 2nd 2010)

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury. "A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise to the party opposing the amendment" (Matter of Allstate Ins. Co. v Joseph, 35 AD3d 730, 731; see CPLR 3025[c]; A-1 Check Cashing Serv. v Goodman, 148 AD2d 482). Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery (see Alomia v New York City Tr. Auth., 292 AD2d 403, 406; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365, 366).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendant Joseph Maniscalco. The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore agreed to withdraw her dental malpractice claim against Dr. Maniscalco at the close of her case. While the appellant opposed Dr. Maniscalco's motion to dismiss the cross claim against him upon the ground that there was a factual dispute as to whether Dr. Maniscalco was an independent contractor who could be held liable for his own acts of malpractice, the appellant's expert witness disclosure statement failed to identify any departures from good and accepted standards of dental practice which Dr. Maniscalco may have committed. Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Parlante v Cavallero, 73 AD3d 1001; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745; Sohn v Sand, 180 AD2d 789, 790.

Comice v Justin's Rest., 2010 NY Slip Op 07884 (App. Div., 2nd 2010)

The Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 1003 for leave to amend the summons and complaint to add Andre Suite as a defendant. The statute of limitations expired and the plaintiff failed to demonstrate that the relation-back doctrine was applicable (see CPLR 203[f]; Buran v Coupal, 87 NY2d 173). In order for claims asserted against a new defendant to relate back to the date the claims were filed against an original defendant, the plaintiff must establish, inter alia, that the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well (see Buran v Coupal, 87 NY2d at 178; Arsell v Mass One LLC, 73 AD3d 668, 669; Boodoo v Albee Dental Care, 67 AD3d 717, 718). Here, the plaintiff failed to establish that Suite knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been brought against him as well (see Boodoo v Albee Dental Care, 67 AD3d at 718; Marino v Westchester Med. Group, P.C., 50 AD3d 861; Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 437; see also Bumpus v New York City Tr. Auth., 66 AD3d 26, 34-35).

Furthermore, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 1024 to name Andre Suite as a defendant in lieu of "John Doe." In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Bumpus v New York City Tr. Auth., 66 AD3d at 29-30; Harris v North Shore Univ. Hosp. at Syosset, 16 AD3d 549, 550; Justin v Orshan, 14 AD3d 492, 492-493; Scoma v Doe, 2 AD3d 432, 433; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Here, the plaintiff failed to make such a showing. 

Sanchez v Avuben Realty LLC, 2010 NY Slip Op 08780 (App. Div., 1st 2010)

An application brought pursuant to CPLR 5015 to be relieved from a judgment or order entered on default requires a showing of a reasonable excuse and legal merit to the defense asserted (see Crespo v A.D.A. Mgt., 292 AD2d 5, 9 [2002]). While the failure to keep a current address with the Secretary of State is generally not a reasonable excuse for default under CPLR 5015(a)(1) (id. at 9-10), where a court finds that a defendant failed to "personally receive notice of the summons in time to defend and has a meritorious defense," relief from a default may be permitted (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]).

Here, notwithstanding the Secretary of State's maintenance of the wrong corporate address, the evidence of record demonstrates that defendant did receive notice of the summons in time to interpose a defense, and inexplicably failed to do so. It is undisputed that six months after the complaint's filing, counsel for defendant's insurer contacted plaintiff's counsel to discuss settlement, at which time he was informed of the then-pending motion for default judgment. The very fact that settlement options were discussed at this time evidences that defendant was aware of plaintiff's action. Moreover, vacatur of a default judgment is not warranted merely because the default was occasioned by lapses on the part of an insurance carrier (see Klein v Actors & Directors Lab, 95 AD2d 757 [1983], lv dismissed 60 NY2d 559 [1983];Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2006]). The evidence of record also indicates that five months after filing of the summons and complaint, copies thereof were delivered to an undisputably valid address for defendant, as was notice of entry of the Supreme Court's March 26, 2007 order granting plaintiff's motion for default judgment and [*2]noticing an inquest as to damages. Still defendant took no action until approximately two-and-a-half years after the complaint's filing, when plaintiff attempted to collect on the Supreme Court's judgment.

Defendant failed to establish entitlement to vacatur of the default judgment under CPLR 5015(a)(3) due to an alleged fraud perpetrated by plaintiff in support of his complaint, as the affidavit it submitted in support of this claim was both conclusory and recounted hearsay.

Gibbs v St. Barnabas Hosp., 2010 NY Slip Op 09198 (Ct. App. 2010)

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a "party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule." CPLR 3126, in turn, governs discovery penalties and applies where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed." The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders "as are just." CPLR 3126 therefore broadly empowers a trial court to craft a conditional order — an order "that grants the motion and imposes the sanction 'unless' within a specified time the resisting party submits to the disclosure" (Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3126:10 ["The conditional order is in fact the most popular disposition under CPLR 3126"]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs' lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital's attorneys ^[FN3]. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiff to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that "absent an affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment" (id. at 1000 [emphasis added]).

***

In reaching this conclusion, we reiterate that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).

 

 

 

On Vacatur CPLR R. 5015 & § 317

CPLR R. 5015 Relief from judgment or ordersummons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

C&H Import & Export, Inc. v MNA Global, Inc., 2010 NY Slip Op 09205 (App. Div., 2nd 2010)

The plaintiff demonstrated its entitlement to a default judgment against the appellants, MNA Global, Inc. (hereinafter MNA), and Menashe Amitay, an officer of MNA, by submitting proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the appellants' defaults in answering or appearing (see CPLR 3215[f]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102). In opposition to the plaintiff's motion, the appellants alleged that the Supreme Court lacked personal jurisdiction over them (see CPLR 5015[a][4]). The process server's affidavits of service constituted prima facie evidence of proper service upon Amitay pursuant to CPLR 308(2) and upon MNA pursuant to CPLR 311(a)(1) (see Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984;McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562). The unsubstantiated denials by Amitay that neither he nor MNA were served with the summons and complaint were insufficient to rebut the presumption of proper service (see Pezolano v Incorporated City of Glen Cove, 71 AD3d 970; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Sime v Ludhar, 37 AD3d 817). Notably, Amitay failed to submit any affidavit by the person upon whom process was allegedly served pursuant to CPLR 308(2) denying receipt of the summons and complaint (see Roberts v Anka, 45 AD3d 752, 754; Foster v Jordan, 269 AD2d 152; cf. Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538). Furthermore, Amitay did not deny that the individual described in the affidavit with respect to service of MNA was a managing agent of MNA (see SFR Funding, Inc. v Studio Fifty Corp., 36 AD3d 604; Ralph DiMaio Woodworking Co. v Ameribuild Constr. Mgt., 300 AD2d 558). The appellants offered no other excuse for their defaults in answering the complaint (see CPLR 5015[a][1]). [*2]

Even if that branch of the appellants' cross motion which sought, in effect, to vacate their default was treated as one made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143; Irwin Mtge. Corp. v Devis, 72 AD3d 743; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497), the appellants failed to demonstrate that they did not receive notice of the summons and complaint in time to defend the action (see Irwin Mtge. Corp. v Devis, 72 AD3d 743; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327). The plaintiff's evidence that a copy of the summons and complaint was mailed to Amitay's correct residence address created a presumption of proper mailing and of receipt (see Engel v Lichterman, 62 NY2d 943; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524). His mere denial of receipt, without more, did not rebut the presumption of proper mailing (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d at 525; De La Barrera v Handler, 290 AD2d 476; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453).

The Supreme Court also properly denied that branch of the appellants' cross motion which sought, in effect, an extension of time to serve a late answer pursuant to CPLR 3012(d), as they did not establish a reasonable excuse for their failure to timely serve an answer (see 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726; Elite Limousine Plus v Allcity Ins. Co., 266 AD2d 259).

 

CPLR R. 5015(a)(4), CPLR § 317, Service is hard to rebut

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default...
(2) newly-discovered evidence...
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 308 Personal service upon a natural person
(2)  by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

Ogunbemi v New York City Hous. Auth., 2009 NY Slip Op 06637 (App. Div., 1st, 2009)

Plaintiffs failed to demonstrate a reasonable excuse for their default (St. Rose v McMorrow, 43 AD3d 1146 [2007]). Their proffered excuse of inability to obtain the expert engineer's affidavit in a timely manner because he was out of town for an extended period is unpersuasive because plaintiffs concede they received the affidavit six days before the motion's return date. Plaintiffs' excuse that they were unable to obtain their medical expert's signed affirmation due to the doctor's busy schedule is similarly unavailing, even assuming that the delay in obtaining the affirmation was not the result of their own lack of diligence, because the affirmation was not necessary to oppose the motion in light of the engineer's affidavit. Finally, the excuse that they misplaced certain photographs documenting the scene of the accident and the injuries to the child is unconvincing, not only because it was raised at the eleventh hour, three months after the motion was filed, but also because plaintiffs admitted they may have misplaced the photos themselves, proffered no reason for why the photos were even necessary to oppose summary judgment given the child's mother's testimony regarding the layout of the accident scene, and conceded that they had numerous other photos that would have sufficed if indeed they were necessary. Nor did plaintiffs meet their burden of demonstrating a meritorious opposition to the summary judgment motion.

Sturino v Nino Tripicchio & Son Landscaping, 2009 NY Slip Op 06829 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was, in effect, pursuant to CPLR 5015(a)(4) to vacate a clerk's judgment entered upon their default in appearing or answering the complaint. The process server's affidavits of service constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983; Olesniewicz v Khan, 8 AD3d 354, 355). The affidavit of the defendant Nino Tripicchio, submitted on his behalf as well as on behalf of the defendant Nino Tripicchio & Son Landscaping (hereinafter together the Nino Tripicchio defendants), consisted of an unsubstantiated denial of service of the summons and complaint and was insufficient to rebut the presumption of proper service (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 96 Pierrepont v Mauro, 304 AD2d 631). The defendant Giovanni Tripicchio made no attempt to rebut the presumption of proper service, as he failed to submit an affidavit (see Olesniewicz v Kahn, 8 AD3d at 355).

The Supreme Court providently exercised its discretion in determining that the Nino Tripicchio defendants were not entitled to relief pursuant to CPLR 317. They failed to demonstrate that they did not personally receive notice of the summons and complaint in time to defend the action (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Caruso v Valentin, 54 AD3d 987).

The bold is mine.

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure to present the affidavit of the defendant Miguel Carvajal in opposition to the plaintiff's prior motion for leave to enter a default judgment against Carvajal and in support of their prior cross motion, inter alia, to vacate Carvajal's default in appearing in the action or answering the complaint based on the Corporation Counsel's delay in obtaining an affidavit from Carvajal (see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the summons and complaint to a coworker at Carvajal's actual place of business and by mailing the summons to him at his actual place of business pursuant to CPLR 308(2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512, 513). Although the defendants' cross motion was made pursuant to CPLR 5015(a)(1), under the circumstances of this case, it may also be treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual notice of the summons in time to defend, he did not deliberately attempt to avoid service, and he has a meritorious defense to the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior motion for leave to enter a default judgment against Carvajal was properly denied and the defendants' prior cross motion to vacate Carvajal's default and to compel the plaintiff to accept the amended answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling, 149 AD2d 657, 659). Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne, 251 AD2d 560). However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352). [*2]

Here, the plaintiff allegedly effected service upon the appellant pursuant to CPLR 308(2) on April 23, 2007, by delivering the summons and complaint to a person of suitable age and discretion, who was identified as Marilyn Matheson, at the appellant's residence in Queens. In support of her motion, in effect, to vacate her default in appearing or answering the complaint, the appellant submitted an affidavit from Matheson averring that the summons and complaint had never been delivered to her, and that she was in Pawling, New York, in April 2007. Although Matheson's affidavit did not specify that she was in Pawling on April 23, 2007, when process allegedly was delivered to her in Queens, the appellant submitted additional evidence to substantiate her claim that Matheson was in Pawling that day, including a letter from a physician who treated Matheson for flu symptoms. The appellant's submissions also indicated that Matheson's physical appearance varied significantly from the description set forth in the affidavit of service. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344). Thus, we remit the matter to the Supreme Court, Queens County, for a hearing to determine whether the appellant was properly served and thereafter for a new determination of the motion to vacate.

The appeal from so much of the order dated June 5, 2008, as denied that branch of the appellant's motion which was for leave to reargue must be dismissed, since no appeal lies from an order denying reargument. The appeal from so much of the order dated June 5, 2008, as denied that branch of the appellant's motion which was for leave to renew must be dismissed as academic in light of our determination on the appeal from the order dated December 4, 2007.

The bold is mine.

CPLR Article 3: § 301; § 302; § 317 & Jurisdiction & CPLR § 3215(c)

CPLR § 301 Jurisdiction over persons, property or status

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a)(1)

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR § 3215 Default judgment
(c)

Stevenson-Misischia v L'Isola D'Oro SRL, 2009 NY Slip Op 05687 (App. Div., 1st, 2009)

Contrary to plaintiff's claim, personal jurisdiction was not obtained over defendant L'Isola D'Oro USA by service under Business Corporation Law § 307. The record does not support a finding that defendant Casamento was acting as a managing or general agent for this New Jersey corporation at the time he was served, or that he was ever authorized by appointment or by law to receive service on its behalf (see Low v Bayerische Motoren Werke, AG, 88 AD2d 504 [1982]).

The action was also properly dismissed against the Italian defendants, L'Isola D'Oro SRL and Sud Pesca SPA, for failure to show they had any business connections with New York or transacted any business here in any manner related to the allegedly tortious conduct (CPLR 301, 302; see Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28 [1990]; McGowan v Smith, 52 NY2d 268 [1981]).

Cohen v Michelle Tenants Corp., 2009 NY Slip Op 05504 (App. Div., 2nd, 2009)

CPLR 317 permits a defendant who has been "served with a summons other than by personal delivery" to defend the action upon a finding of the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498). The defendant, which was served by service of process upon the Secretary of State, established that it did not receive personal notice of the summons in time to defend (see Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 410-411; Ford v 536 E. 5th St. Equities, 304 AD2d 615). Furthermore, there is no basis to conclude that the defendant deliberately attempted to avoid notice of the action. There was no evidence that the defendant was on notice that an old address was on file with the Secretary of State (see Tselikman v Marvin Ct, Inc., 33 AD3d 908, 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553; Grosso v MTO Assoc. Ltd. Partnership., 12 AD3d 402). In addition, the defendant established the existence of a potentially meritorious defense (see Hawkins v Carter Community Hous. Dev. Fund [*2]Corp., 40 AD3d 812, 813; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482).

The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3215(c) to dismiss the complaint. The plaintiff actively took proceedings for the entry of judgment within one year after the default and thereby complied with the statute (see Bank of New York v Gray, 228 AD2d 399, 400; Q.P.I. Restaurants, Ltd. v Slevin, 93 AD2d 767, 768).

Zottola v AGI Group, Inc., 2009 NY Slip Op 05327 (App. Div., 2nd, 2009)

Due process requires that to exercise jurisdiction over a nonresident defendant, the nonresident defendant must have "minimum contacts" such that maintenance of the action does not offend traditional notions of fair play and substantial justice (see e.g. International Shoe Co. v Washington, 326 US 310). Due process is not offended "[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there . . . even if not present' in that State. . . . New York's long-arm statute, CPLR 302, was enacted in response to [inter alia that decision]" (Kruetter v McFadden Oil Corp., 71 NY2d 460, 466-467 [internal quotations and citations omitted]).

Under CPLR 302(a)(1), the provision at issue here, "a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302[a][1]). CPLR 302(a)(1) "is a single act statute' and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095). Thus, to avail itself of this statute, a plaintiff must not only establish that the defendant purposefully transacted business within the State of New York, but must also show a substantial relationship, which may pertain to a single act, between the transaction and the claim asserted (see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d at 71, cert denied 549 US 1095; Kruetter v McFadden Oil Corp., 71 NY2d at 467).

To satisfy the "transacting business" requirement under CPLR 302(a)(1), a nonresident defendant must purposefully avail itself of the privilege of conducting activities in New York, thus invoking the benefits and protections of New York law (see McGowan v Smith, 52 NY2d 268, 271). The totality of the nonresident defendant's activities within the forum state is considered in order to determine whether its contacts satisfy the "transacting business" requirement (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 457-458).

In response to AGI's assertions that it lacked the minimum contacts, the plaintiff made a prima facie showing that there were sufficient minimum contacts to permit New York to exercise in personam jurisdiction over AGI. In his complaint, the plaintiff alleged first, that "[both of] the defendants" (including AGI) agreed to deliver the boat in New York. Second, he provided proof that the money for the purchase of the boat was paid to AGI by wire transfer to a New York bank branch, not a Florida bank. Third, according to the "Manufacture's [sic] Statement of Origin," the boat in question was transferred on March 14, 2005, to AGI, and on December 2, 2005, AGI transferred the "Statement of Origin and boat" to the plaintiff at his New York address. This was sufficient to show that AGI accomplished this transaction in New York State, sufficiently availed itself of the benefits of doing business in this State, and had a substantial relationship with this State such that due process would not be offended by subjecting it to this State's jurisdiction, and that it thereby subjected itself to in personam jurisdiction under CPLR 302(a)(1). Thus, the motion by AGI pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it should have been denied (see Bogal v Finger, 59 AD3d 653; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243; People v Concert Connection, 211 AD2d 310, 315; cf. Farkas v Farkas, 36 AD3d 852; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433).

The bold is mine.

CPLR R. 5015(a)(1)&(4); CPLR § 308(2)&(4); CPLR § 317

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default...
(2) newly-discovered evidence...
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 308 Personal service upon a natural person
(2)  by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

CPLR R. 320 Defendant's appearance
(a) Requirement of appearance

Caba v Rai, 2009 NY Slip Op 05252 (App. Div., 1st, 2009)

CPLR 317 and 5015(a)(1) allow a defendant against whom a default judgment has been rendered to move to vacate that default. CPLR 317 provides that

"[a] person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318 . . . who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense."

Thus, this statute is available only to a defendant who (1) was served by a method other than personal delivery, (2) moves to vacate the judgment within one year of learning of it (but not more than five years after entry), and (3) demonstrates a potentially meritorious defense to the action. By contrast, CPLR 5015(a)(1) is available to any defendant against whom a default judgment was entered, provided that the defendant can demonstrate both a reasonable excuse for the default and a potentially meritorious defense. A defendant seeking relief under 5015(a)(1) must move to vacate the default judgment within one year of service on defendant of the default judgment with notice of entry. Both provisions assume personal jurisdiction exists over the defaulting defendant and provide that party with an opportunity to open the default and contest the merits of the plaintiff's claim (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 249-250 [main vol]; see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:6, at 210). If the defaulting defendant asserts that the court lacked personal jurisdiction over him or her, the defendant should seek dismissal of the action under CPLR 5015(a)(4) (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 250 [main vol]), a motion that has no stated time limit and can be made at any time (Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR C5015:3, at 205-206 [main vol]).

In moving to vacate the default judgment, defendant argued that she was entitled to relief under CPLR 317 or 5015(a)(1) and sought to vacate the judgment and for an extension of time to interpose an answer; she did not seek relief under 5015(a)(4) or request that the complaint be dismissed for want of personal jurisdiction. To be sure, in her notice of cross motion, defendant requested an order "vacating and setting aside the defendant's [default] pursuant to CPLR 5015 and/or CPLR 317, extending the defendant's time to answer and compelling plaintiff to accept defendant's answer pursuant to CPLR 2004." Nowhere in her motion papers, however, did defendant suggest that the action should be dismissed because the court lacked personal jurisdiction over her. Although defendant did argue that she had not received the summons and complaint (or the default judgment), that argument was asserted by defendant in an effort to establish that she had a reasonable excuse for her default. What the concurring Justice considers to be part of the "crux" of defendant's motion, "the absence of any personal jurisdiction," was never stated in the motion. Accordingly, since defendant sought to vacate the judgment and defend the action on the merits, Supreme Court erred in ordering a traverse hearing; defendant charted a specific procedural course that Supreme Court improperly altered (see Mitchell v New [*3]York Hosp., 61 NY2d 208, 214 [1984]).^[FN1]

With respect to her contention that she was entitled to relief under CPLR 317, defendant obtained knowledge of the judgment in January 2004 when she received a credit report listing the judgment, and did not move to vacate the default until August 2007. Thus, that portion of defendant's cross motion seeking relief under CPLR 317 was untimely.

Regarding that portion of the cross motion that sought relief under CPLR 5015(a)(1), there is no indication when the default judgment with notice of entry was served on defendant. Thus, assuming without deciding that defendant properly could seek relief under 5015(a)(1),^[FN2] the motion appears timely and plaintiff does not argue to the contrary. Nonetheless, defendant is not entitled to relief under 5015(a)(1). Although defendant denied receiving the summons and complaint or any other papers in this matter until she was served with plaintiff's motion to compel the sheriff to seize and sell her property, defendant learned of the judgment in January 2004. She did not move to vacate the default, however, until August 2007 and only did so in response to plaintiff's motion to seize and sell her property. Moreover, plaintiff's counsel [*4]averred that both defendant and her attorney contacted plaintiff's counsel on May 11, 2005 about vacating the judgment, an averment that is corroborated by phone message slips generated by plaintiff's counsel's secretary and which defendant does not dispute. Thus, defendant failed to proffer a reasonable excuse for her substantial delay in moving to vacate the judgment (see Bekker v Fleischman, 35 AD3d 334 [2006]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran v Edderson, 259 AD2d 728 [1999]). In light of our conclusion that defendant failed to proffer a reasonable excuse, we need not determine whether she offered a potentially meritorious defense to the action.

To read the concurring opinion, click the link for the decision above.

Kalamadeen v Singh, 2009 NY Slip Op 05296 (App. Div., 2nd, 2009)

The plaintiff and the defendant allegedly were involved in an automobile accident on February 26, 2001. The police accident report lists two different addresses for the defendant, one from his driver's license and a different one from his vehicle registration. The plaintiff commenced this action in February 2004, and contends that he served the defendant pursuant to CPLR 308(4) at the defendant's address then on record at the Department of Motor Vehicles (hereinafter the DMV). This address was different from the two addresses on the police accident report. The defendant did not appear in the action and a judgment was entered against him on August 18, 2004, upon his default.

Upon discovering the judgment against him, the defendant moved to vacate it, contending that at the time service allegedly was made he did not live at the address where process was affixed and mailed, he did not receive process, and that the subject accident was the plaintiff's fault. A hearing to determine the validity of service of process was ordered. At the hearing, the process server admitted that on the fourth occasion that he attempted to personally deliver the summons and complaint to the defendant at the defendant's address then on record with the DMV, he was told by the owner of the premises that the defendant had moved from that address several months earlier. Nevertheless, the process server affixed the summons and complaint to the door at that address and mailed process to that address, [*2]purportedly in compliance with CPLR 308(4). The Civil Court of the City of New York, Queens County, granted the defendant's motion to vacate the default, and the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts affirmed, with one Justice dissenting. We granted leave to appeal and now reverse and deny the defendant's motion to vacate the default judgment.

CPLR 308(4) requires that the summons be affixed to the door of the defendant's "actual place of business, dwelling place or usual place of abode." Although the required subsequent mailing to the defendant's last known residence will suffice for the second element of service under CPLR 308(4), affixing process to the door of the defendant's last known residence will not be sufficient to meet the first element of the statute (see Feinstein v Bergner, 48 NY2d 234). The issue here is whether there is sufficient evidence, including the defendant's failure to notify the Commissioner of the DMV of his change of address, as required by Vehicle and Traffic Law § 505(5), to estop the defendant from obtaining vacatur of the default judgment on the ground that service of process was not made in strict compliance with CPLR 308(4) (see Cruz v Narisi, 32 AD3d 981).

To the extent that the defendant's motion to vacate his default was made pursuant to CPLR 5015(a)(1), based upon excusable default, it should have been denied, as the defendant's change of address is not a reasonable excuse because he failed to comply with Vehicle and Traffic Law § 505(5) (see Candela v Johnson, 48 AD3d 502; Labozzetta v Fabbro, 22 AD3d 644; Traore v Nelson, 277 AD2d 443). Likewise, to the extent that the motion was made pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, it should have been denied, as the defendant is estopped from challenging the propriety of service due to his failure to comply with Vehicle and Traffic Law § 505(5) (see Labozzetta v Fabbro, 22 AD3d 644; Kandov v Gondal, 11 AD3d 516).

A default judgment may be vacated pursuant to CPLR 317 where the defendant was served by a method other than personal delivery and did not actually receive notice of the summons in time to defend, provided that the defendant has a meritorious defense (see Thakurdyal v 341 Scholes St., LLC, 50 AD3d 889). However, "denial of relief under CPLR 317 might be appropriate where . . . a defendant's failure to personally receive notice of the summons was a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143). Here, considering that the defendant supplied the police officer with two different addresses at the time of the officer's investigation, and that there was yet another address on record for the defendant at the DMV, his failure to comply with Vehicle and Traffic Law § 505(5) raised an inference that the defendant deliberately attempted to avoid notice of the action (see Cruz v Narisi, 32 AD3d 981). The defendant failed to rebut that inference. Accordingly, the defendant was not entitled to relief under CPLR 317 (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622.

That's one harsh inference.

Weiqin Wu v Guo Dong Chen, 2009 NY Slip Op 51142(U) (App. Term, 2nd, 2009)

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not have been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better [*2]perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In its decision after trial, the Civil Court explicitly stated that it credited plaintiff's testimony, but not defendant's. The Civil Court also implicitly found that plaintiff had established that there was an agreement between plaintiff and defendant, acting in his individual capacity, and that defendant had breached that agreement. That finding is supported by the record and will not be disturbed on appeal.

The Civil Court properly denied defendant's posttrial motion, as defendant failed to establish that he had discovered any evidence that he could not have discovered prior to trial or prior to the time for making a timely CPLR 4404 motion (CPLR 5015 [a] [2]), or that plaintiff had made any misrepresentations (CPLR 5015 [a] [3]). We note that defendant also failed to establish that the agreement was void pursuant to the statute of frauds (see e.g. Taranto v Fritz, 83 AD2d 864 [1981]; 61 NY Jur 2d, Statute of Frauds § 39).

Accordingly, the Civil Court's judgment and order provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126), and we affirm.

Saxon Mtge. Servs., Inc. v Bell, 2009 NY Slip Op 05312 (App. Div., 2nd, 2009)

Where, as here, the appellant submitted a detailed affidavit stating that he was home on each of the occasions when the process server purportedly attempted to serve process pursuant to CPLR 308(2), he rebutted the allegations contained in the process server's affidavit and was entitled to a hearing to determine whether personal jurisdiction was acquired over him (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

While the appellant eventually acquired actual notice of the action, actual notice alone will not sustain the service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service (see Frankel v Schilling, 149 AD2d 657; Skyline Agency v Coppotelli, Inc., 117 AD2d 135).

The bold is mine.