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Parts Authority, Inc. Doing Business As Clearway Automotive v. Grand Performance

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 11, 2012

PARTS AUTHORITY, INC. DOING BUSINESS AS CLEARWAY AUTOMOTIVE,
APPELLANT, --
v.
GRAND PERFORMANCE, INC. AND JOHN NICOSIA,
RESPONDENTS.

Appeals from orders of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered August 17, 2010 and October 12, 2010, respectively.

Parts Auth., Inc. v Grand Performance, Inc.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 11, 2012

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The order entered August 17, 2010 granted defendants' motion to vacate a default judgment. The order entered October 12, 2010 denied plaintiff's motion for leave to reargue or renew its opposition to defendants' prior motion to vacate the default judgment.

ORDERED that the order entered August 17, 2010 is reversed, without costs, and defendants' motion to vacate the default judgment is denied; and it is further,

ORDERED that the appeal from the order entered October 12, 2010 is dismissed.

Plaintiff commenced this action to recover the principal sum of $884.30 for goods sold and delivered to the corporate defendant, the payment of which was personally guaranteed by the individual defendant. Upon defendants' failure to answer the complaint, a default judgment was entered against them on January 11, 2010. In August 2010, defendants moved to, among other things, vacate the default judgment pursuant to CPLR 317. By order entered August 17, 2010, the Civil Court granted the motion. Thereafter, plaintiff moved for leave to renew and reargue its opposition to defendants' prior motion. By order entered October 12, 2010, the court denied the motion.

We find that defendants' conclusory and unsubstantiated denials of service of the summons and complaint were insufficient to rebut the presumption of proper service arising from the process server's affidavit (see U.S. Bank, N.A. v Arias, 85 AD3d 1014 [2011]). Moreover, the individual defendant was not entitled to relief from the judgment entered upon default purusant to CPLR 317 since he failed to make a showing that he had not received actual notice of the summons in time to defend (see De La Barrera v Handler, 290 AD2d 476 [2002]). We note that CPLR 317 is inapplicable with respect to the corporate defendant, since the summons and complaint were personally delivered to the corporate defendant's managing agent (see CPLR 311, 317).

Regarding plaintiff's motion, denominated as one for leave to renew and reargue, plaintiff did not offer any new facts which it had failed to offer in opposition to defendants' motion to vacate the default judgment (see CPLR 2221 [e] [2], [3]). Thus, plaintiff's motion was, in actuality, a motion for leave to reargue, the denial of which is not appealable (see Board of Directors of Squire Green at Pawling Homeowners Assn., Inc. v Bell, 89 AD3d 657 [2011]).

Accordingly, the order entered August 17, 2010 is reversed and defendants' motion to vacate the default judgment is denied. The appeal from the order entered October 12, 2010 is dismissed as no appeal lies therefrom.

Weston, J.P., Pesce and Rios, JJ., concur.

Decision Date: May 11, 2012

20120511

© 1992-2012 VersusLaw Inc.



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