979 SECOND AVENUE LLC v. CHAO (2024)

Order, Supreme Court, New York County (Erika M. Edwards, J), entered January 12, 2023, which denied defendant's motion to vacate a default judgment against her, unanimously affirmed, without costs.

Defendant moves to vacate the default judgment pursuant to CPLR 5015(a)(1) and (3), asserting that the judgment was obtained based on fraud, specifically a forged personal guaranty of a lease.  On a motion to vacate a default judgment pursuant to CPLR 5015(a)(1), defendant must establish both a reasonable excuse for the default and a potentially meritorious defense to the action (see Navarro v. A. Trenkman Estate, Inc., 279 A.D.2d 257, 719 N.Y.S.2d 34 [1st Dept. 2001]).  Since defendant seeks relief based on allegations of “intrinsic fraud,” rather than “extrinsic fraud,” she also must establish both a reasonable excuse for the default and a meritorious defense to the action to obtain relief pursuant to CPLR 5015(a)(3) (see 3331 102 St. LLC v. Newport Beach Holdings LLC, 205 A.D.3d 497, 497, 165 N.Y.S.3d 857 [1st Dept. 2022]).

Here, defendant's general denial that she received the summons and complaint at the commencement of the action, or a subsequent CPLR 3215(g)(3) notice, is insufficient to rebut the presumption of delivery raised by the properly executed affidavit of service (see 60 E. 9th St. Owners Corp. v. Zihenni, 111 A.D.3d 511, 512–513, 975 N.Y.S.2d 32 [1st Dept. 2013]), and does not constitute a reasonable excuse for the default (see U.S. Bank N.A. v. Martinez, 139 A.D.3d 548, 549–550, 34 N.Y.S.3d 3 [1st Dept. 2016];  60 E. 9th St. Owners Corp. v. Zihenni, 111 A.D.3d at 512–513, 975 N.Y.S.2d 32).

Given defendant's failure to provide an acceptable excuse for the default, it is unnecessary for this Court to address whether she demonstrated a potentially meritorious defense to the claim (see 3331 102 St. LLC v. Newport Beach Holdings LLC, 205 A.D.3d at 497, 165 N.Y.S.3d 857), which, in any event, is based on a guaranty that was notarized, raising a presumption of due execution (see Son Fong Lum v. Antonelli, 102 A.D.2d 258, 260, 476 N.Y.S.2d 921 [2d Dept. 1984], affd 64 N.Y.2d 1158, 490 N.Y.S.2d 733, 480 N.E.2d 347 [1985];  CPLR 4538).

We have considered defendant's remaining arguments and find them unavailing.