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Lesley Drazek, Appellant v. Vital Transportation

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


February 8, 2013

LESLEY DRAZEK, APPELLANT,
v.
VITAL TRANSPORTATION, INC., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2012.

Drazek v Vital Transp., 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2013

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

The order denied plaintiff's motion to vacate a prior order of the same court, entered December 12, 2011, which had granted defendant's unopposed motion to open its default in answering the complaint, cancelled the scheduled inquest, and stayed the action pending the outcome of arbitration.

ORDERED that the order is affirmed, without costs.

Plaintiff, a driver for, and shareholder and proprietary licensee of, defendant, a radio dispatch limousine service, commenced this action to recover $25,000 for breach of contract. An inquest was scheduled after defendant had failed to appear or answer. Upon learning of the inquest, defendant moved, by order to show cause, to open its default in answering and to stay the action pending arbitration pursuant to the arbitration clause in the parties' proprietary licensing agreement. The inquest was temporarily stayed, and defendant's motion was made returnable on December 12, 2011. Plaintiff failed to oppose defendant's motion and, by order entered December 12, 2011, the Civil Court granted defendant's motion, stating that it was opening the default, canceling the inquest, and staying the action pending arbitration pursuant to the proprietary licensing agreement.

Thereafter, plaintiff moved to vacate the December 12, 2011 order, claiming that he had not been notified of the return date. By order entered January 24, 2012, the Civil Court denied plaintiff's motion.

In his motion to vacate the December 12, 2011 order, plaintiff failed to demonstrate both a reasonable excuse for his default (see CPLR 5015 [a] [1]) and a potentially meritorious opposition to defendant's prior motion (see New Seven Colors Corp. v White Bubble Laundromat, Inc., 89 AD3d 701 [2011]; L & L Auto Distribs. & Suppliers Inc. v Auto Collection, Inc., 85 AD3d 734 [2011]). Although plaintiff claims that he did not know of the December 12, 2011 return date of the motion, defendant's affidavit of service indicates that defendant's motion papers had been mailed by overnight next-day delivery and had been signed for by plaintiff. If plaintiff is claiming that the default occurred because he was not served with defendant's motion papers, his mere denial of receipt of such motion papers, without more, is insufficient to rebut the presumption of proper mailing which attached to the affidavit of service (see Kihl v Pfeffer, 94 NY2d 118 [1999]). Moreover, plaintiff failed to demonstrate that he had any potentially meritorious opposition to defendant's motion.

We note that we do not consider facts or issues raised by plaintiff which are dehors the record or are raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order of the Civil Court is affirmed.

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

Decision Date: February 08, 2013

20130208

© 1992-2013 VersusLaw Inc.



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