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Nu-Life Restorations of Long Island, Inc v. Greenpoint Dental Plaza

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


March 29, 2013

NU-LIFE RESTORATIONS OF LONG ISLAND, INC.,
APPELLANT, --
v.
GREENPOINT DENTAL PLAZA, P.C.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered February 14, 2012.

Nu-Life Restorations of Long Is., Inc. v Greenpoint Dental Plaza, P.C.

Decided on March 29, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

In this action to recover the principal sum of $2,765.60 for services rendered by plaintiff to defendant dental practice, Greenpoint Dental Plaza, P.C., the summons and complaint were served upon the Secretary of State pursuant to Business Corporation Law § 306, and plaintiff presented proof of an additional mailing to defendant at its last known address. Upon defendant's default in appearing and answering the complaint, plaintiff obtained a default judgment. In moving to vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant asserted, among other things, that it had taken over the facility at which it maintains its practice from a different business with a similar name, Greenpoint Dental Care, P.C., and that defendant had never received a copy of the "petition or notice of petition" [sic]. Defendant also stated generally that the judgment did not reflect all of the payments it had made to plaintiff. By order entered February 14, 2012, the Civil Court granted defendant's motion to vacate the default judgment. On appeal, plaintiff contends that defendant failed to demonstrate a reasonable excuse for its default and a meritorious defense.

Service was properly effectuated upon defendant pursuant to Business Corporation Law § 306 (b) (1) (see CPLR 311 [a] [1]; Konig v Hermitage Ins. Co., 93 AD3d 643 [2012]; Thas v Dayrich Trading, Inc., 78 AD3d 1163 [2010]). In the present case, the mere conclusory denial by defendant's office manager of receipt of a "petition or notice of petition" was insufficient to rebut the presumption of proper service on the Secretary of State raised by the affidavit of service (see Business Corporation Law § 306 [b] [1]; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1081-1082 [2011]; Thas v Dayrich Trading, Inc., 78 AD3d 1163).

Thus, in order to vacate its default in appearing or answering the complaint, defendant was required to demonstrate a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; 2261 Palmer Ave. Corp. v Malick, 91 AD3d 853 [2012]; Kouzios v Dery, 57 AD3d 949 [2008]). Defendant failed to demonstrate a meritorious defense. We note that defendant's conclusory claim that the judgment did not reflect all of its payments to plaintiff, without any evidentiary support, was insufficient to establish a meritorious defense (see Garal Wholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041 [2011]; Newsday, Inc. v Exotic & Unique Cars, Inc., 33 Misc 3d 140[A], 2011 NY Slip Op 52135[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is reversed and defendant's motion to vacate the default judgment is denied.

Rios, J.P., Weston and Aliotta, JJ., concur. Decision

Date: March 29, 2013

20130329

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