Pezolano v. Inc. City of Glen Cove

• Decision Date: 23 March 2010
• Citation: 896 N.Y.S.2d 685,71 A.D.3d 970,2010 N.Y. Slip Op. 02528
• Parties: Philip T. PEZOLANO, et al., respondents,v.INCORPORATED CITY OF GLEN COVE, defendant,Willibe Wilson, appellant.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 970
896 N.Y.S.2d 685
2010 N.Y. Slip Op. 02528

Philip T. PEZOLANO, et al., respondents,
v.
INCORPORATED CITY OF GLEN COVE, defendant,Willibe Wilson, appellant.

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

March 23, 2010.

Law Offices of Jay S. Markowitz, P.C., Kew Gardens, N.Y., for appellant.Mitchell Dranow, Mineola, N.Y., for respondents.

[71 A.D.3d 970] In an action to recover damages for personal injuries, etc., the defendant Willibe Wilson appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered April 30, 2009, which denied his motion to vacate a judgment of the same court entered June 11, 2008, which, upon an order entered February 13, 2007, granting the plaintiffs' unopposed motion for leave to enter judgment on the issue of liability upon his default in appearing or answering the complaint, and after an inquest on the issue of damages, was in favor of the plaintiffs and against him in the principal sum of $232,000.

[71 A.D.3d 971] ORDERED that the order entered April 30, 2009, is affirmed, with costs.

In moving pursuant to CPLR 5015(a)(1) to vacate the judgment entered against him, the appellant claimed that he was not served with the summons and complaint ( see CPLR 5015[a][4]; Roberts v. Anka, 45 A.D.3d 752, 753, 846 N.Y.S.2d 280; Marable v. Williams, 278 A.D.2d 459, 718 N.Y.S.2d 400; Taylor v. Jones, 172 A.D.2d 745, 746, 569 N.Y.S.2d 131). However, the appellant's unsubstantiated denial of service was insufficient to rebut the presumption of proper service pursuant to CPLR 308(2) created by the affidavit of service and other evidence in the record ( see Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d 1327, 885 N.Y.S.2d 625; Beneficial Homeowner Serv. Corp. v. Girault, 60 A.D.3d 984, 875 N.Y.S.2d 815; Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v. Ellner, 57 A.D.3d 732, 733, 869 N.Y.S.2d 591; Sime v. Ludhar, 37 A.D.3d 817, 817–818, 830 N.Y.S.2d 775). Furthermore, the appellant did not swear to any specific facts that would rebut the statements in the process server's affidavit that the summons and complaint were delivered to a person of suitable age and discretion at the appellant's dwelling house or usual place of abode and mailed to the same address ( see Sturino v. Nino Tripicchio & Son Landscaping, 65 A.D.3d at 1327, 1338, 885 N.Y.S.2d 625; Silverman v. Deutsch, 283 A.D.2d 478, 479, 724 N.Y.S.2d 647). The appellant offered no other excuse for his default in answering the...