C & H Import & Export, Inc. v. MNA Global, Inc.

• Decision Date: 14 December 2010
• Citation: 79 A.D.3d 784,912 N.Y.S.2d 428
• Court: New York Supreme Court — Appellate Division
• Parties: C & H IMPORT & EXPORT, INC., respondent, v. MNA GLOBAL, INC., et al., appellants, et al., defendant.

912 N.Y.S.2d 428

79 A.D.3d 784

C & H IMPORT & EXPORT, INC., respondent,

v.MNA GLOBAL, INC., et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 14, 2010.

Poltorak, P.C., Brooklyn, N.Y. (Elie C. Poltorak of counsel), for appellants.

Goetz Fitzpatrick, LLP, New York, N.Y. (Bernard Kobroff of counsel), for respondent.

In an action, inter alia, to recover damages for breach of fiduciary duty, for an accounting, and injunctive relief, the defendants MNA Global, Inc., and Menashe Amitay appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated March 27, 2009, as granted the plaintiff's motion for leave to enter adefault judgment against them upon their failure to appear or answer the complaint and denied those branches of their cross motion which were, in effect, to vacate their default and for leave to serve a late answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

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 A.D.3d 1102, 885 N.Y.S.2d 218). 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 A.D.3d 984, 875 N.Y.S.2d 815; McIntyre v. Emanuel Church of God In Christ, Inc., 37 A.D.3d 562, 830 N.Y.S.2d 261). 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 A.D.3d 970, 896 N.Y.S.2d 685; Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625; Sime v. Ludhar, 37 A.D.3d 817, 830 N.Y.S.2d 775). 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 A.D.3d 752, 754, 846 N.Y.S.2d 280; Foster v. Jordan, 269 A.D.2d 152, 703 N.Y.S.2d 23; cf. Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86). Furthermore, Amitay did not deny that the individual described in the affidavit with respect to service of MNA was a managingagent of MNA ( see SFR Funding, Inc. v. Studio Fifty Corp., 36 A.D.3d 604, 829 N.Y.S.2d 137; Ralph DiMaio Woodworking Co. v. Ameribuild Constr. Mgt., 300 A.D.2d 558, 752 N.Y.S.2d 534). The appellants offered no other excuse for their defaults in answering the complaint ( see CPLR 5015[a][1] ).

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 N.Y.2d 138, 143, 501 N.Y.S.2d 8, 492 N.E.2d 116; Irwin Mtge. Corp. v. Devis, 72 A.D.3d 743, 898 N.Y.S.2d 854; Mann-Tell Realty Corp. v. Cappadora Realty Corp., 184 A.D.2d 497, 586 N.Y.S.2d 755), the appellants failed todemonstrate that they did not receive notice of the summons and complaint in time to defend the action ( see Irwin Mtge. Corp. v. Devis, 72 A.D.3d 743, 898 N.Y.S.2d 854; Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625). 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 N.Y.2d 943, 479 N.Y.S.2d 188, 468 N.E.2d 26; Cavalry Portfolio Servs., LLC v. Reisman, 55 A.D.3d 524, 865 N.Y.S.2d 286). His mere denial of receipt, without more, did not rebut the presumption of proper mailing ( see Cavalry Portfolio Servs., LLC v. Reisman, 55 A.D.3d at 525, 865 N.Y.S.2d 286; De La...