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Oh v. Chung

Supreme Court of New York, Second Department

June 26, 2013

Suk Min Oh, et al., respondents,
v.
Hon Voon Chung, defendant, Mike's Heavy Duty Towing, Inc., appellant.

Gary Rosen Law Firm, P.C., Great Neck, N.Y., for appellant.

Siegle & Sims, LLP, New York, N.Y. (Eric W. Siegle of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Mike's Heavy Duty Towing, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Sweeney, J.), dated February 15, 2012, as granted the plaintiffs' motion for leave to enter judgment on the issue of liability against it, upon its default in appearing or answering.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs demonstrated their entitlement to judgment on the issue of liability against the appellant by submitting proof of service of the summons and complaint, proof of the facts constituting their claim against the appellant, and proof of the appellant's failure to answer or appear (see CPLR 3215[f]; Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70-71; Karalis v New Dimensions HR, Inc., 105 A.D.3d 707).

In opposition to the plaintiffs' motion for leave to enter a default judgment against it, the appellant failed to demonstrate a reasonable excuse for its default or to come forward with any proof to rebut the affidavit of the plaintiffs' process server, which constituted prima facie evidence of proper service upon it pursuant to CPLR 311(a)(1) (see Business Corporation Law § 306; CPLR 5015[a][1], [4]; Hidalgo v Cruiser Taxi Corp., 101 A.D.3d 950; Thas v Dayrich Trading, Inc., 78 A.D.3d 1163, 1164; Gartner v Unified Windows, Doors & Siding, Inc., 71 A.D.3d 631, 632).

Furthermore, the appellant failed to demonstrate that it did not personally receive notice of the summons in time to defend the action, as required to obtain relief from a default judgment pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr., Co., 67 N.Y.2d 138, 141; Hidalgo v Cruiser Taxi Corp., 101 A.D.3d at 951; Wassertheil v Elburg, LLC, 94 A.D.3d 753, 754; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081-1082).

Accordingly, the Supreme Court properly granted the plaintiffs' motion for leave to enter judgment on the issue of liability against the appellant.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.


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