SAN LIM v. Shawn Tobin, Defendant. (2021)

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about January 3, 2019, which granted plaintiff's motion for a default judgment against defendant Shawn Tobin, unanimously affirmed, without costs.  Order, same court and Justice, entered August 1, 2019, which denied the motion of defendant MTA Bus Company to vacate the default judgment and its motion to renew its opposition to the motion for a default judgment, unanimously affirmed, without costs.  Order, same court and Justice, entered December 11, 2019, which, inter alia, denied MTA's motion to renew the branch of its prior motion that sought to vacate the default judgment, unanimously affirmed, without costs.

Supreme Court did not err in denying the MTA's motion to vacate the default judgment entered against Tobin for lack of jurisdiction pursuant to CPLR 5015(a)(4) and CPLR 3211(a)(8).  Plaintiff submitted a properly executed affidavit of service, which is prima facie evidence of proper service upon Tobin at his actual place of business pursuant to CPLR 308(2) (see Rivera v. Banks, 135 A.D.3d 621, 622, 25 N.Y.S.3d 77 [1st Dept. 2016] ).  The MTA's conclusory denial that Tobin was properly served with the summons and complaint failed to rebut the presumption of service created by the process server's properly executed affidavit (see Matter of de Sanchez, 57 A.D.3d 452, 454, 870 N.Y.S.2d 24 [1st Dept. 2008] ), and the affidavits submitted by the MTA fail to address the issue.  That plaintiff served Tobin at the MTA's Legal Division located at 2 Broadway in Manhattan instead of his garage where he allegedly reported to work before he stopped working for the MTA is of no moment under CPLR 308(2), because the staff of that office accepted service on behalf of the MTA, which was sued as Tobin's employer pursuant to respondeat superior for his purported negligence while operating an MTA bus during the course of his employment, and was well suited to accept process on behalf of the MTA's employees (see Rahhal v. Downing, 157 A.D.3d 446, 447, 67 N.Y.S.3d 619 [1st Dept. 2018] ).  The MTA's contention that plaintiff's purported mailing of a copy of the summons and complaint to 2 Broadway was not reasonably calculated to reach Tobin because the process server did not indicate in his affidavit whether the contents of the envelope were intended for him need not be considered, because that point was not raised below and may not be raised on appeal (see Mendelsohn v. City of N.Y. [19th Precinct], 89 A.D.3d 569, 569–570, 934 N.Y.S.2d 3 [1st Dept. 2011], lv denied 19 N.Y.3d 804, 2012 WL 1988415 [2012] ).

We further find that Supreme Court properly denied the MTA's motion for vacatur pursuant to CPLR 5015(a)(1), because its bare denial of service of the summons and complaint upon Tobin did not constitute a reasonable excuse for his delay in answering (see HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 1123, 1124, 51 N.Y.S.3d 116 [2d Dept. 2017] ).  Because the MTA failed to proffer a reasonable excuse for Tobin's default in answering the complaint, its motion to vacate the default judgment entered against him must be denied regardless of whether the MTA demonstrated that he had a potentially meritorious defense to the action (see M.R. v. 2526 Valentine LLC, 58 A.D.3d 530, 532, 871 N.Y.S.2d 131 [1st Dept. 2009] ).

Although the MTA was not required to show that Tobin had a reasonable excuse for not timely answering the complaint under CPLR 317, Supreme Court properly denied its vacatur motion pursuant to this provision because the MTA failed to submit an affidavit from a person with personal knowledge sufficient to demonstrate that Tobin had a meritorious defense (see Peacock v. Kalikow, 239 A.D.2d 188, 190, 658 N.Y.S.2d 7 [1st Dept. 1997] ).  Contrary to the MTA's contention, the unsworn statement purportedly made by Tobin after the accident does not demonstrate that he has a potentially meritorious defense because it does not constitute evidence in admissible form, and, absent an excuse for not having it sworn, it cannot be considered (see Merrill/New York Co. v. Celerity Sys., 300 A.D.2d 206, 207, 752 N.Y.S.2d 301 [1st Dept. 2002] ).

Furthermore, Supreme Court properly exercised its discretion in denying the MTA's renewal motion because it was based on facts that were or should have been known to it at the time it submitted its opposition to plaintiff's motion to vacate, and there is no explanation as to why those facts were not presented on the prior motion (see Sullivan v. Harnisch, 100 A.D.3d 513, 514, 954 N.Y.S.2d 68 [1st Dept. 2012] ).  Supreme Court also appropriately declined to grant renewal in the interest of justice.