CARRENARD v. MASS (2004)

In an action to recover damages for personal injuries, etc., the defendant Henry Mass appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated January 12, 2004, which denied his motion to vacate so much of a judgment of the same court (Silverman, J.H.O.) dated October 7, 2002, as, upon his default in appearing or answering the complaint, was in favor of the plaintiffs and against him in the principal sum of $40,000.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellant's motion to vacate his default in appearing or answering the complaint pursuant to CPLR 5015(a)(1) (see Taylor v. Saal, 4 A.D.3d 467, 771 N.Y.S.2d 671;  Dominguez v. Carioscia, 1 A.D.3d 396, 397, 766 N.Y.S.2d 685).   The appellant's mere denial that he was served with a summons and complaint in the action was insufficient to rebut the presumption of proper service raised by the affidavit of service (see Truscello v. Olympia Constr., 294 A.D.2d 350, 351, 741 N.Y.S.2d 709;  De La Barrera v. Handler, 290 A.D.2d 476, 736 N.Y.S.2d 249).   Indeed, he is bereft of a reasonable excuse for his default because he cannot challenge the validity of service at his prior residence address (see Vehicle and Traffic Law § 505[5], Choudhry v. Edward, 300 A.D.2d 529, 752 N.Y.S.2d 384;  Traore v. Nelson, 277 A.D.2d 443, 444, 716 N.Y.S.2d 701).   Furthermore, even if the appellant's motion were treated as one made pursuant to CPLR 317 (see Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 143, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Mann-Tell Realty Corp. v. Cappadora Realty Corp., 184 A.D.2d 497, 498, 586 N.Y.S.2d 755), he failed to demonstrate that he did not personally receive notice of the summons in time to defend the action (see 96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468;  Waldon v. Plotkin, 303 A.D.2d 581, 756 N.Y.S.2d 765).