SLIMANI v. << (2008)

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered February 13, 2007, awarding third-party plaintiff the principal sum of $10,000, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered February 9, 2007, which granted third-party plaintiff's motion for default judgment and denied third-party defendant's cross motion to vacate the default, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 The judgment was based on a prior settlement that had resolved issues of unjust enrichment and implied indemnity (see McDermott v. City of New York, 50 N.Y.2d 211, 217, 428 N.Y.S.2d 643, 406 N.E.2d 460 [1980] ).   While third-party defendant contends that this was error, we need not reach this issue as third-party defendant was unable to demonstrate a reasonable excuse for his multiple and acknowledged defaults (Hyundai Corp. v. Republic of Iraq, 20 A.D.3d 56, 62, 794 N.Y.S.2d 327 [2005], appeal dismissed 5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663 [2005] ).   Mere denial of service would not rebut the presumption of proper service created by a properly executed affidavit of service (De La Barrera v. Handler, 290 A.D.2d 476, 477, 736 N.Y.S.2d 249 [2002];  Fairmount Funding v. Stefansky, 235 A.D.2d 213, 652 N.Y.S.2d 14 [1997] ).