CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based
CPLR § 308 Personal service upon a natural person
(2) by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door
CPLR § 317 Defense by person to whom summons not personally delivered
Ogunbemi v New York City Hous. Auth., 2009 NY Slip Op 06637 (App. Div., 1st, 2009)
Plaintiffs failed to demonstrate a reasonable excuse for their default (St. Rose v McMorrow, 43 AD3d 1146
[2007]). Their proffered excuse of inability to obtain the expert
engineer's affidavit in a timely manner because he was out of town for
an extended period is unpersuasive because plaintiffs concede they
received the affidavit six days before the motion's return date.
Plaintiffs' excuse that they were unable to obtain their medical
expert's signed affirmation due to the doctor's busy schedule is
similarly unavailing, even assuming that the delay in obtaining the
affirmation was not the result of their own lack of diligence, because
the affirmation was not necessary to oppose the motion in light of the
engineer's affidavit. Finally, the excuse that they misplaced certain
photographs documenting the scene of the accident and the injuries to
the child is unconvincing, not only because it was raised at the
eleventh hour, three months after the motion was filed, but also
because plaintiffs admitted they may have misplaced the photos
themselves, proffered no reason for why the photos were even necessary
to oppose summary judgment given the child's mother's testimony
regarding the layout of the accident scene, and conceded that they had
numerous other photos that would have sufficed if indeed they were
necessary. Nor did plaintiffs meet their burden of demonstrating a
meritorious opposition to the summary judgment motion.
Sturino v Nino Tripicchio & Son Landscaping, 2009 NY Slip Op 06829 (App. Div., 2nd, 2009)
The Supreme Court providently exercised its discretion in denying
that branch of the defendants' motion which was, in effect, pursuant to
CPLR 5015(a)(4) to vacate a clerk's judgment entered upon their default
in appearing or answering the complaint. The process server's
affidavits of service constituted prima facie evidence of proper
service pursuant to CPLR 308(4) (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983; Olesniewicz v Khan,
8 AD3d 354, 355). The affidavit of the defendant Nino Tripicchio,
submitted on his behalf as well as on behalf of the defendant Nino
Tripicchio & Son Landscaping (hereinafter together the Nino
Tripicchio defendants), consisted of an unsubstantiated denial of
service of the summons and complaint and was insufficient to rebut the
presumption of proper service (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 96 Pierrepont v Mauro,
304 AD2d 631). The defendant Giovanni Tripicchio made no attempt to
rebut the presumption of proper service, as he failed to submit an
affidavit (see Olesniewicz v Kahn, 8 AD3d at 355).The Supreme Court providently exercised its discretion in
determining that the Nino Tripicchio defendants were not entitled to
relief pursuant to CPLR 317. They failed to demonstrate that they did
not personally receive notice of the summons and complaint in time to
defend the action (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Caruso v Valentin, 54 AD3d 987).
The bold is mine.
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