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Dalma Gonzalez v. the City of New York

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 7, 2013

DALMA GONZALEZ,
PLAINTIFF-RESPONDENT,
v.
THE CITY OF NEW YORK, ET AL.,
DEFENDANTS.
RACSON GROUP INC.,
DEFENDANT-APPELLANT,

Gonzalez v City of New York

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 7, 2013

Friedman, J.P., Acosta, Moskowitz, Manzanet-Daniels, Clark, JJ.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 17, 2012, which denied defendant Racson Group Inc.'s motion to vacate the default judgment entered against it, unanimously affirmed, without costs.

The court properly determined that defendant failed to demonstrate that its default should be vacated under either CPLR 317 or 5015(a)(1). The record indicates that an affidavit of a process server stated that defendant was served through the Secretary of State. Under CPLR 317, defendant was required to demonstrate, inter alia, that it did not receive notice of the summons in time to defend, and that it had a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, defendant provided only a conclusory affidavit denying receipt of the pleadings, without further explanation, which was insufficient to rebut the presumption of service created by the process server's affidavit (see Grinshpun v Borokhovich, 100 AD3d 551 [1st Dept 2012]).

Defendant also failed to satisfy the requirements of CPLR 5015(a)(1) by failing to provide a reasonable excuse for its default (see Rugieri v Bannister, 7 NY3d 742, 744 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 7, 2013

CLERK

20130507

© 1992-2013 VersusLaw Inc.



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