CPLR R. 5015(a)(4), CPLR § 317, Service is hard to rebut

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.

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure
to present the affidavit of the defendant Miguel Carvajal in opposition
to the plaintiff's prior motion for leave to enter a default judgment
against Carvajal and in support of their prior cross motion, inter
alia, to vacate Carvajal's default in appearing in the action or
answering the complaint based on the Corporation Counsel's delay in
obtaining an affidavit from Carvajal
(see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the
summons and complaint to a coworker at Carvajal's actual place of
business and by mailing the summons to him at his actual place of
business pursuant to CPLR 308(2)
(see Anderson v GHI Auto Serv., Inc., 45 AD3d 512,
513). Although the defendants' cross motion was made pursuant to CPLR
5015(a)(1), under the circumstances of this case, it may also be
treated as a motion made pursuant to CPLR 317
(see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual
notice of the summons in time to defend, he did not deliberately
attempt to avoid service, and he has a meritorious defense to the
action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp.,
299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior
motion for leave to enter a default judgment against Carvajal was
properly denied and the defendants' prior cross motion to vacate
Carvajal's default and to compel the plaintiff to accept the amended
answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling,
149 AD2d 657, 659). Ordinarily, a process server's affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service
(see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne,
251 AD2d 560). However, where there is a sworn denial that a defendant
was served with process, the affidavit of service is rebutted, and the
plaintiff must establish jurisdiction at a hearing by a preponderance
of the evidence
(see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352).
[*2]

Here, the plaintiff allegedly
effected service upon the appellant pursuant to CPLR 308(2) on April
23, 2007, by delivering the summons and complaint to a person of
suitable age and discretion, who was identified as Marilyn Matheson, at
the appellant's residence in Queens. In support of her motion, in
effect, to vacate her default in appearing or answering the complaint,
the appellant submitted an affidavit from Matheson averring that the
summons and complaint had never been delivered to her, and that she was
in Pawling, New York, in April 2007.
Although Matheson's affidavit did
not specify that she was in Pawling on April 23, 2007, when process
allegedly was delivered to her in Queens, the appellant submitted
additional evidence to substantiate her claim that Matheson was in
Pawling that day, including a letter from a physician who treated
Matheson for flu symptoms. The appellant's submissions also indicated
that Matheson's physical appearance varied significantly from the
description set forth in the affidavit of service. Under these
circumstances, the appellant is entitled to a hearing on the issue of
whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d at 344). Thus, we remit the matter to the Supreme Court,
Queens County, for a hearing to determine whether the appellant was
properly served and thereafter for a new determination of the motion to
vacate.

The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
reargue must be dismissed, since no appeal lies from an order denying
reargument
. The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
renew must be dismissed as academic in light of our determination on
the appeal from the order dated December 4, 2007.

The bold is mine.

CPLR Article 3: § 301; § 302; § 317 & Jurisdiction & CPLR § 3215(c)

CPLR § 301 Jurisdiction over persons, property or status

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a)(1)


CPLR § 317 Defense by person to whom summons not personally delivered

CPLR § 3215 Default judgment
(c)

Stevenson-Misischia v L'Isola D'Oro SRL, 2009 NY Slip Op 05687 (App. Div., 1st, 2009)

Contrary to plaintiff's claim, personal jurisdiction was not
obtained over defendant L'Isola D'Oro USA by service under Business
Corporation Law § 307. The record does not support a finding that
defendant Casamento was acting as a managing or general agent for this
New Jersey corporation at the time he was served, or that he was ever
authorized by appointment or by law to receive service on its behalf
(see Low v Bayerische Motoren Werke, AG, 88 AD2d 504 [1982]).

The action was also properly dismissed against the Italian
defendants, L'Isola D'Oro SRL and Sud Pesca SPA, for failure to show
they had any business connections with New York or transacted any
business here in any manner related to the allegedly tortious conduct
(CPLR 301, 302
; see Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28 [1990]; McGowan v Smith, 52 NY2d 268 [1981]).

Cohen v Michelle Tenants Corp., 2009 NY Slip Op 05504 (App. Div., 2nd, 2009)

CPLR 317 permits a defendant who has been "served with a summons
other than by personal delivery" to defend the action upon a finding of
the court that the defendant "did not personally receive notice of the
summons in time to defend and has a meritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The defendant, which was served by service of process upon
the Secretary of State, established that it did not receive personal
notice of the summons in time to defend
(see Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 410-411; Ford v 536 E. 5th St. Equities, 304
AD2d 615). Furthermore, there is no basis to conclude that the
defendant deliberately attempted to avoid notice of the action. There
was no evidence that the defendant was on notice that an old address
was on file with the Secretary of State
(see Tselikman v Marvin Ct, Inc., 33 AD3d 908, 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553; Grosso v MTO Assoc. Ltd. Partnership., 12 AD3d 402). In addition, the defendant established the existence of a potentially meritorious defense (see Hawkins v Carter Community Hous. Dev. Fund [*2]Corp., 40 AD3d 812, 813; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482).

The Supreme Court properly denied that branch of the defendant's
motion which was pursuant to CPLR 3215(c) to dismiss the complaint. The
plaintiff actively took proceedings for the entry of judgment within
one year after the default and thereby complied with the statute
(see Bank of New York v Gray, 228 AD2d 399, 400; Q.P.I. Restaurants, Ltd. v Slevin, 93 AD2d 767, 768).

Zottola v AGI Group, Inc., 2009 NY Slip Op 05327 (App. Div., 2nd, 2009)

Due process requires that to exercise jurisdiction over a
nonresident defendant, the nonresident defendant must have "minimum
contacts" such that maintenance of the action does not offend
traditional notions of fair play and substantial justice
(see e.g. International Shoe Co. v Washington, 326
US 310). Due process is not offended "[s]o long as a party avails
itself of the benefits of the forum, has sufficient minimum contacts
with it, and should reasonably expect to defend its actions there . . .
even if not present' in that State. . . . New York's long-arm statute,
CPLR 302, was enacted in response to [inter alia that decision]" (Kruetter v McFadden Oil Corp., 71 NY2d 460, 466-467 [internal quotations and citations omitted]).

Under CPLR 302(a)(1), the provision at issue here, "a court may
exercise personal jurisdiction over any non-domiciliary, or his
executor or administrator, who in person or through an agent . . .
transacts any business within the state or contracts anywhere to supply
goods or services in the state"
(CPLR 302[a][1]). CPLR 302(a)(1) "is a
single act statute' and proof of one transaction in New York is
sufficient to invoke jurisdiction, even though the defendant never
enters New York, so long as the defendant's activities here were
purposeful and there is a substantial relationship between the
transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549
US 1095). Thus, to avail itself of this statute, a plaintiff must not
only establish that the defendant purposefully transacted business
within the State of New York, but must also show a substantial
relationship, which may pertain to a single act, between the
transaction and the claim asserted (see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d at 71, cert denied 549 US 1095; Kruetter v McFadden Oil Corp., 71 NY2d at 467).

To satisfy the "transacting business" requirement under CPLR
302(a)(1), a nonresident defendant must purposefully avail itself of
the privilege of conducting activities in New York, thus invoking the
benefits and protections of New York law (see McGowan v Smith, 52
NY2d 268, 271). The totality of the nonresident defendant's activities
within the forum state is considered in order to determine whether its
contacts satisfy the "transacting business" requirement
(see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 457-458).

In response to AGI's assertions that it lacked the minimum
contacts, the plaintiff made a prima facie showing that there were
sufficient minimum contacts to permit New York to exercise in personam
jurisdiction over AGI. In his complaint, the plaintiff alleged first,
that "[both of] the defendants" (including AGI) agreed to deliver the
boat in New York. Second, he provided proof that the money for the
purchase of the boat was paid to AGI by wire transfer to a New York
bank branch, not a Florida bank. Third, according to the "Manufacture's
[sic] Statement of Origin," the boat in question was transferred on
March 14, 2005, to AGI, and on December 2, 2005, AGI transferred the
"Statement of Origin and boat" to the plaintiff at his New York
address. This was sufficient to show that AGI accomplished this
transaction in New York State, sufficiently availed itself of the
benefits of doing business in this State, and had a substantial
relationship with this State such that due process would not be
offended by subjecting it to this State's jurisdiction, and that it
thereby subjected itself to in personam jurisdiction under CPLR
302(a)(1)
. Thus, the motion by AGI pursuant to CPLR 3211(a)(8) to
dismiss the complaint insofar as asserted against it should have been
denied (see Bogal v Finger, 59 AD3d 653; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243; People v Concert Connection, 211 AD2d 310, 315; cf. Farkas v Farkas, 36 AD3d 852; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433).

The bold is mine.

CPLR R. 5015(a)(1)&(4); CPLR § 308(2)&(4); CPLR § 317

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

CPLR R. 320 Defendant's appearance
(a) Requirement of appearance

Caba v Rai, 2009 NY Slip Op 05252 (App. Div., 1st, 2009)

CPLR 317 and 5015(a)(1) allow a defendant against whom a default
judgment has been rendered to move to vacate that default. CPLR 317
provides that

"[a] person served with a summons other than by personal delivery
to him or to his agent for service designated under rule 318 . . . who
does not appear may be allowed to defend the action within one year
after he obtains knowledge of entry of the judgment, but in no event
more than five years after such entry, upon a finding of the court that
he did not personally receive notice of the summons in time to defend
and has a meritorious defense."

Thus, this statute is available only to a defendant who (1) was
served by a method other than personal delivery, (2) moves to vacate
the judgment within one year of learning of it (but not more than five
years after entry), and (3) demonstrates a potentially meritorious
defense to the action. By contrast, CPLR 5015(a)(1) is available to any
defendant against whom a default judgment was entered, provided that
the defendant can demonstrate both a reasonable excuse for the default
and a potentially meritorious defense. A defendant seeking relief under
5015(a)(1) must move to vacate the default judgment within one year of
service on defendant of the default judgment with notice of entry. Both
provisions assume personal jurisdiction exists over the defaulting
defendant and provide that party with an opportunity to open the
default and contest the merits of the plaintiff's claim
(see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 249-250 [main vol]; see also
Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,
CPLR C5015:6, at 210). If the defaulting defendant asserts that the
court lacked personal jurisdiction over him or her, the defendant
should seek dismissal of the action under CPLR 5015(a)(4) (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C317:1, at 250 [main vol]), a
motion that has no stated time limit and can be made at any time
(Siegel, Practice Commentaries, McKinney's Cons Laws, Book 7B, CPLR
C5015:3, at 205-206 [main vol]).

In moving to vacate the default judgment, defendant argued that
she was entitled to relief under CPLR 317 or 5015(a)(1) and sought to
vacate the judgment and for an extension of time to interpose an
answer; she did not seek relief under 5015(a)(4) or request that the
complaint be dismissed for want of personal jurisdiction.
To be sure,
in her notice of cross motion, defendant requested an order "vacating
and setting aside the defendant's [default] pursuant to CPLR 5015
and/or CPLR 317, extending the defendant's time to answer and
compelling plaintiff to accept defendant's answer pursuant to CPLR
2004." Nowhere in her motion papers, however, did defendant suggest
that the action should be dismissed because the court lacked personal
jurisdiction over her.
Although defendant did argue that she had not
received the summons and complaint (or the default judgment), that
argument was asserted by defendant in an effort to establish that she
had a reasonable excuse for her default. What the concurring Justice
considers to be part of the "crux" of defendant's motion, "the absence
of any personal jurisdiction," was never stated in the motion.
Accordingly, since defendant sought to vacate the judgment and defend
the action on the merits, Supreme Court erred in ordering a traverse
hearing; defendant charted a specific procedural course that Supreme
Court improperly altered (see Mitchell v New [*3]York Hosp., 61 NY2d 208, 214 [1984]).[FN1]

With respect to her contention that she was entitled to relief
under CPLR 317, defendant obtained knowledge of the judgment in January
2004 when she received a credit report listing the judgment, and did
not move to vacate the default until August 2007. Thus, that portion of
defendant's cross motion seeking relief under CPLR 317 was untimely.

Regarding that portion of the cross motion that sought relief
under CPLR 5015(a)(1), there is no indication when the default judgment
with notice of entry was served on defendant. Thus, assuming without
deciding that defendant properly could seek relief under 5015(a)(1),[FN2]
the motion appears timely and plaintiff does not argue to the contrary.
Nonetheless, defendant is not entitled to relief under 5015(a)(1).
Although defendant denied receiving the summons and complaint or any
other papers in this matter until she was served with plaintiff's
motion to compel the sheriff to seize and sell her property, defendant
learned of the judgment in January 2004. She did not move to vacate the
default, however, until August 2007 and only did so in response to
plaintiff's motion to seize and sell her property. Moreover,
plaintiff's counsel [*4]averred that both
defendant and her attorney contacted plaintiff's counsel on May 11,
2005 about vacating the judgment, an averment that is corroborated by
phone message slips generated by plaintiff's counsel's secretary and
which defendant does not dispute. Thus, defendant failed to proffer a
reasonable excuse for her substantial delay in moving to vacate the
judgment
(see Bekker v Fleischman, 35 AD3d 334 [2006]; Robinson v 1068 Flatbush Realty, Inc., 10 AD3d 716 [2004]; Duran v Edderson,
259 AD2d 728 [1999]). In light of our conclusion that defendant failed
to proffer a reasonable excuse, we need not determine whether she
offered a potentially meritorious defense to the action.

To read the concurring opinion, click the link for the decision above.

Kalamadeen v Singh, 2009 NY Slip Op 05296 (App. Div., 2nd, 2009)

The plaintiff and the defendant allegedly were involved in an
automobile accident on February 26, 2001. The police accident report
lists two different addresses for the defendant, one from his driver's
license and a different one from his vehicle registration. The
plaintiff commenced this action in February 2004, and contends that he
served the defendant pursuant to CPLR 308(4) at the defendant's address
then on record at the Department of Motor Vehicles (hereinafter the
DMV). This address was different from the two addresses on the police
accident report. The defendant did not appear in the action and a
judgment was entered against him on August 18, 2004, upon his default.

Upon discovering the judgment against him, the defendant moved
to vacate it, contending that at the time service allegedly was made he
did not live at the address where process was affixed and mailed, he
did not receive process, and that the subject accident was the
plaintiff's fault. A hearing to determine the validity of service of
process was ordered. At the hearing, the process server admitted that
on the fourth occasion that he attempted to personally deliver the
summons and complaint to the defendant at the defendant's address then
on record with the DMV, he was told by the owner of the premises that
the defendant had moved from that address several months earlier.
Nevertheless, the process server affixed the summons and complaint to
the door at that address and mailed process to that address, [*2]purportedly
in compliance with CPLR 308(4). The Civil Court of the City of New
York, Queens County, granted the defendant's motion to vacate the
default, and the Appellate Term for the Second, Eleventh, and
Thirteenth Judicial Districts affirmed, with one Justice dissenting. We
granted leave to appeal and now reverse and deny the defendant's motion
to vacate the default judgment
.

CPLR 308(4) requires that the summons be affixed to the door of
the defendant's "actual place of business, dwelling place or usual
place of abode." Although the required subsequent mailing to the
defendant's last known residence will suffice for the second element of
service under CPLR 308(4), affixing process to the door of the
defendant's last known residence will not be sufficient to meet the
first element of the statute (see Feinstein v Bergner, 48 NY2d
234). The issue here is whether there is sufficient evidence, including
the defendant's failure to notify the Commissioner of the DMV of his
change of address, as required by Vehicle and Traffic Law § 505(5), to
estop the defendant from obtaining vacatur of the default judgment on
the ground that service of process was not made in strict compliance
with CPLR 308(4) (see Cruz v Narisi, 32 AD3d 981).

To the extent that the defendant's motion to vacate his default
was made pursuant to CPLR 5015(a)(1), based upon excusable default, it
should have been denied, as the defendant's change of address is not a
reasonable excuse because he failed to comply with Vehicle and Traffic
Law § 505(5)
(see Candela v Johnson, 48 AD3d 502; Labozzetta v Fabbro, 22 AD3d 644; Traore v Nelson, 277
AD2d 443). Likewise, to the extent that the motion was made pursuant to
CPLR 5015(a)(4), based on lack of personal jurisdiction, it should have
been denied, as the defendant is estopped from challenging the
propriety of service due to his failure to comply with Vehicle and
Traffic Law § 505(5)
(see Labozzetta v Fabbro, 22 AD3d 644; Kandov v Gondal, 11 AD3d 516).

A default judgment may be vacated pursuant to CPLR 317 where the
defendant was served by a method other than personal delivery and did
not actually receive notice of the summons in time to defend, provided
that the defendant has a meritorious defense (see Thakurdyal v 341 Scholes St., LLC, 50
AD3d 889). However, "denial of relief under CPLR 317 might be
appropriate where . . . a defendant's failure to personally receive
notice of the summons was a deliberate attempt to avoid such notice" (Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67
NY2d 138, 143). Here, considering that the defendant supplied the
police officer with two different addresses at the time of the
officer's investigation, and that there was yet another address on
record for the defendant at the DMV, his failure to comply with Vehicle
and Traffic Law § 505(5) raised an inference that the defendant
deliberately attempted to avoid notice of the action
(see Cruz v Narisi, 32
AD3d 981). The defendant failed to rebut that inference. Accordingly,
the defendant was not entitled to relief under CPLR 317 (see Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 143; Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622.

That's one harsh inference.

Weiqin Wu v Guo Dong Chen, 2009 NY Slip Op 51142(U) (App. Term, 2nd, 2009)

The decision of a fact-finding court should not be disturbed upon
appeal unless it is obvious that the court's conclusions could not have
been reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court
(see Williams v Roper,
269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier
of fact as to issues of credibility is given substantial deference as
the court has the opportunity to observe and evaluate the testimony and
demeanor of the witnesses, thereby affording the trial court a better [*2]perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

In its decision after trial, the Civil Court explicitly stated
that it credited plaintiff's testimony, but not defendant's. The Civil
Court also implicitly found that plaintiff had established that there
was an agreement between plaintiff and defendant, acting in his
individual capacity, and that defendant had breached that agreement.
That finding is supported by the record and will not be disturbed on
appeal.

The Civil Court properly denied defendant's posttrial motion,
as defendant failed to establish that he had discovered any evidence
that he could not have discovered prior to trial or prior to the time
for making a timely CPLR 4404 motion (CPLR 5015 [a] [2]), or that
plaintiff had made any misrepresentations (CPLR 5015 [a] [3]). We note
that defendant also failed to establish that the agreement was void
pursuant to the statute of frauds (see e.g. Taranto v Fritz, 83 AD2d 864 [1981]; 61 NY Jur 2d, Statute of Frauds § 39).

Accordingly, the Civil Court's judgment and order provided the
parties with substantial justice according to the rules and principles
of substantive law (CCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126), and we affirm.

Saxon Mtge. Servs., Inc. v Bell, 2009 NY Slip Op 05312 (App. Div., 2nd, 2009)

Where, as here, the appellant submitted a detailed affidavit stating
that he was home on each of the occasions when the process server
purportedly attempted to serve process pursuant to CPLR 308(2), he
rebutted the allegations contained in the process server's affidavit
and was entitled to a hearing to determine whether personal
jurisdiction was acquired over him
(see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

While the appellant eventually acquired actual notice of the
action, actual notice alone will not sustain the service or subject a
person to the court's jurisdiction when there has not been compliance
with prescribed conditions of service
(see Frankel v Schilling, 149 AD2d 657; Skyline Agency v Coppotelli, Inc., 117 AD2d 135).

The bold is mine.

CPLR § 317

CPLR § 317 Defense by person to whom summons not personally delivered

Girardo v 99-27 Realty, LLC, 2009 NY Slip Op 03693 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in granting
the respondent leave to reargue and, upon reargument, granting the
respondent's motion, inter alia, pursuant to CPLR 317 to vacate the
judgment entered against it upon its default in appearing and answering
the complaint. CPLR 317 permits a defendant that has been "served with
a summons other than by personal delivery" to defend the action upon a
finding of the court that the defendant "did not personally receive
notice of the summons in time to defend and has a meritorious defense"
(Eugene Di Lorenzo, Inc. v A. C. Dutton Lbr. Co., 67 NY2d 138, 141; see Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454, 455; Brockington v Brookfield Dev. Corp., 308
AD2d 498). The respondent, which was served through delivery of process
to the Secretary of State, established that it did not personally
receive notice of the summons in time to defend
(see Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 410-411; [*2]Ford v 536 E. 5th St. Equities, 304
AD2d 615). Furthermore, there is no basis to conclude that the
respondent deliberately attempted to avoid notice of the action
(see Tselikman v Marvin Ct., Inc., 33 AD3d 908, 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553; Grosso v MTO Assocs. Ltd. Partnership, 12 AD3d 402, 403). In addition, the respondent established the existence of a meritorious defense (cf. Yannotti v Four Bros. Homes at Heartland Condominium I, 24 AD3d 659, 660; Zabbia v Westwood, LLC, 18 AD3d 542, 544; Myrow v City of Poughkeepsie, 3 AD3d 480, 481).

The Supreme Court providently exercised its discretion in
extending the time period set forth in CPLR 317 in light of the
respondent's excuse for the short delay in moving to vacate the
judgment and the public policy of determining actions on the merits (cf. CPLR 2004, 2005; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 629-630; Allen v Preston, 123 AD2d 303, 303-304; Levine v Berlin, 46 AD2d 902, 903).

The bold is mine.

CPLR § 317

CPLR § 317 Defense by person to whom summons not personally delivered

M. R. v 2526 Valentine LLC, 2009 NY Slip Op 00300 (App. Div., 1st 2009)

"A person served with a summons other than by personal delivery . .
. may be allowed to defend the action within one year after he obtains
knowledge of entry of the judgment . . . upon a finding . . . that [it]
did not personally receive notice of the summons in time to defend and
has a meritorious defense" (CPLR 317). Valentine cannot seek relief
under this statute, which requires [*2]only a showing of a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,
67 NY2d 138 [1986]), because it failed to establish that it had not
received notice of the summons and complaint in time to interpose a
timely appearance or answer (see Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511 [2006]; Metropolitan Steel Indus. v Rosenshein Hub Dev. Corp.,
257 AD2d 422 [1999]). Therefore, Valentine must satisfy the
requirements of CPLR 5015(a)(1), wherein a defendant seeking to vacate
a default judgment must demonstrate both a reasonable excuse for its
default and a potentially meritorious defense.

Valentine failed to demonstrate a reasonable excuse for its
default. Plaintiff demonstrated that she served Valentine through the
Secretary of State on January 29, 2007 and sent Valentine a letter two
months later informing it that plaintiff would seek a default judgment
if Valentine did not answer or appear within 10 days. Plaintiff also
demonstrated that on January 8 and April 13, 2007, Valentine's insurer
sent Valentine letters stating the insurer's disclaimer of coverage for
the assault. In his conclusory affidavit, Valentine's managing member
did not deny receiving the summons and complaint from the Secretary of
State, plaintiff's letter or the disclaimer letters from Valentine's
insurer, all of which had been sent to Valentine before plaintiff
sought and obtained the default judgment. In light of the disclaimer
letters, which, again, Valentine never denied receiving, its managing
member's stated belief that the insurance company had appeared and
answered was patently insufficient to establish a reasonable excuse for
the default (see Rosario v Beverly Rd. Realty Co., 38 AD3d 875
[2007]). Because Valentine failed, as a matter of law, to proffer a
reasonable excuse for its default, which is a necessary precondition to
relief under CPLR 5015(a)(1), its motion to vacate the judgment must be
denied, regardless of whether Valentine demonstrated a potentially
meritorious defense.

CPLR § 317

CPLR § 317 Defense by person to whom summons not personally delivered

Caruso v Valentin,
2008 NY Slip Op 07204 (App. Div., 2nd)

The Supreme Court did not improvidently exercise its discretion in
denying that branch of the defendants’ motion which was to vacate the
judgment entered upon their failure to appear or answer pursuant to
CPLR 5015 since they failed to present a reasonable excuse for their
default or to demonstrate the existence of a meritorious defense (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taylor v Saal, 4 AD3d 467; Dominguez v Carioscia, 1 AD3d 396; Kaplinsky v Mazor,
307 AD2d 916). Moreover, vacatur was not warranted under CPLR 317 since
the defendants failed to demonstrate that they did not personally
receive notice of the summons and complaint in time to defend the
action
(see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405).

Generally motions to vacate pursuant to CPLR § 317 are less frequent than those pursuant to § 5015.  When making a motion under CPLR § 317 it is important to take note of the peculiar requirements of that section.

All the bold is mine.