Pasanella v. Quinn

• Decision Date: 12 March 2015
• Docket Number: 650198/12, 14502A, 14502
• Citation: 2015 N.Y. Slip Op. 02001,126 A.D.3d 504,5 N.Y.S.3d 413
• Parties: In re Marco PASANELLA, et al., Petitioners–Respondents, v. James QUINN, Respondent–Appellant, Q Wines, LLC, Respondent.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 504

5 N.Y.S.3d 413

2015 N.Y. Slip Op. 02001

In re Marco PASANELLA, et al., Petitioners–Respondents

v. James QUINN, Respondent–AppellantQ Wines, LLC, Respondent.

650198/12, 14502A, 14502

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

March 12, 2015.

Sher Tremonte LLP, New York (Mark Cuccaro of counsel), for appellant.

Law Offices of Ernest H. Gelman, New York (Ernest H. Gelman of counsel), for Marco Pasanella and Premium Wines and Spirits, LLC, respondents.

MAZZARELLI, J.P., ANDRIAS, SAXE, FEINMAN, CLARK, JJ.

Opinion

Order, Supreme Court, New York County (Melvin Schweitzer, J.), entered January 30, 2014, which, to the extent appealable, denied respondent James Quinn's motion to renew his motion to vacate a default judgment, same court and Justice, entered April 4, 2013, confirming an arbitration award, and to vacate or modify an income execution pursuant to CPLR 5240 and 5231(b)(iii), unanimously reversed, on the law and the facts, without costs, renewal granted, the matter remanded to Supreme Court for a traverse hearing and further proceedings consistent with the determination rendered after such hearing, and the income execution stayed pending such determination. Appeal from order, same court and Justice, entered October 21, 2013, unanimously dismissed, without costs, as superseded by the appeal from the January 30, 2014 order.

Appellant's initial, conclusory denial of the receipt of service was insufficient to rebut petitioner's prima facie evidence of proper service, as demonstrated by the affidavit of the process server (see Grinshpun v. Borokhovich, 100 A.D.3d 551, 954 N.Y.S.2d 520 [1st Dept.2012], lv. denied 21 N.Y.3d 857, 2013 WL 2436328 [2013] ). Although a party seeking renewal should offer a reasonable justification for failing to present any new facts on the prior motion (see CPLR 2221[e][3] ), “courts have discretion to relax this requirement and to grant such a motion in the interest of justice” (Mejia v. Nanni, 307 A.D.2d 870, 871, 763 N.Y.S.2d 611 [1st Dept.2003] ). Here, when seeking renewal, appellant submitted evidence suggesting that neither the process server, nor the agency he worked for, was licensed to serve process in either New York or Connecticut (see CPLR 313 ), which we conclude was sufficient to rebut petitioner's prima facie showing and warrant a traverse hearing (see Finkelstein Newman Ferrara LLP v. Manning, 67 A.D.3d 538, 538–539, 889 N.Y.S.2d 147 [1st Dept.2009] ; Norwest Bank Minnesota v. Galasso, 275 A.D.2d 400, 712 N.Y.S.2d 878 [2d Dept.2000] ; Hopkins v. Tinghino, 248 A.D.2d 794, 795, 669 N.Y.S.2d 735 [3d Dept.1998] ).

As there is...