Fusion Funding v. Loftti Inc.

• Decision Date: 05 May 2023
• Docket Number: 132 CA 22-01116
• Parties: FUSION FUNDING, PLAINTIFF-RESPONDENT, v. LOFTTI INC., DOING BUSINESS AS LOFTTI CAFÉ, DEFENDANT AND PAUL KIM, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 02413

FUSION FUNDING, PLAINTIFF-RESPONDENT,
v.
LOFTTI INC., DOING BUSINESS AS LOFTTI CAFÉ, DEFENDANT

AND PAUL KIM, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

No. 132 CA 22-01116

Supreme Court of New York, Fourth Department

May 5, 2023

THE LINDEN LAW GROUP, P.C., NEW YORK CITY (JEFFREY BENJAMIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

WELLS LAW P.C., LANCASTER (JAMES M. SPECYAL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.

Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered May 13, 2022. The order denied the motion of defendant Paul Kim to vacate a default judgment.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In appeal No. 1, Paul Kim (defendant) appeals from an order denying his motion to vacate a default judgment granted against him and defendant Loftti Inc., doing business as Loftti Café. In appeal No. 2, defendant appeals from an order and judgment denying his second motion to vacate the default judgment and granting plaintiff's request for sanctions against defendant.

In appeal No. 1, we reject defendant's contention that he established that he was not properly served with the summons and complaint and therefore Supreme Court abused its discretion in denying his first motion to vacate the default judgment. "The determination whether to vacate an order entered upon default is left to the sound discretion of the court" (Matter of Oneida County Dept. of Social Servs. v Russell R., 175 A.D.3d 1793, 1793 [4th Dept 2019], lv dismissed 35 N.Y.3d 949 [2020]; see Butchello v Terhaar, 176 A.D.3d 1579, 1580 [4th Dept 2019]; Matter of Troy D.B. v Jefferson County Dept. of Social Servs., 42 A.D.3d 964, 965 [4th Dept 2007]). "Pursuant to CPLR 5015 (a) (1), a court may vacate a judgment or order entered upon default if it determines that there is a reasonable excuse for the default and a meritorious defense" (Russell R., 175 A.D.3d at 1794 [internal quotation marks omitted]). "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" (Wells Fargo Bank, N.A. v Leonardo, 167 A.D.3d 816, 817 [2d Dept 2018] [internal quotation marks omitted]). "Bare and unsubstantiated denials [of receipt of service] are insufficient to rebut the presumption of service" (U.S. Bank N.A. v Rauff, 205 A.D.3d 963, 965 [2d Dept 2022] [internal quotation marks omitted]; see LeChase Constr. Servs., LLC v JM Bus. Assoc. Corp., 181 A.D.3d 1294, 1296 [4th Dept...