RODRIGUEZ v. KVATCHADZE (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Otar Kvatchadze appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated April 28, 2023.  The order denied that branch of the motion of the defendant Otar Kvatchadze which was pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Joy F. Campanelli, J.) dated July 28, 2022, granting the plaintiff's unopposed motion for leave to enter a default judgment against that defendant.

ORDERED that the order dated April 28, 2023, is affirmed, with costs.

In September 2021, the plaintiff commenced this action to recover damages for personal injuries arising from a three-vehicle collision against, among others, the defendant Otar Kvatchadze (hereinafter the defendant).  The plaintiff alleged that he was a passenger in the lead vehicle, operated by the defendant, when that vehicle was struck in the rear by another vehicle.  Following the defendant's failure to timely answer the complaint or appear in the action, the plaintiff moved for leave to enter a default judgment against the defendant.  In an order dated July 28, 2022, the Supreme Court granted the plaintiff's unopposed motion.  In February 2023, the defendant moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order dated July 28, 2022, on the ground that he was not properly served with process.  In an order dated April 28, 2023, the court denied that branch of the defendant's motion.  The defendant appeals.

“A party seeking to vacate his or her default in answering the complaint pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action” (JPMorgan Chase Bank, N.A. v. Morton, 226 A.D.3d 665, 667, 210 N.Y.S.3d 112;  see Deutsche Bank Natl. Trust Co. v. Hossain, 187 A.D.3d 986, 987, 131 N.Y.S.3d 202).  “The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court” (M.V. v. Applied Behavioral Mental Health Counseling, P.C., 219 A.D.3d 943, 944, 195 N.Y.S.3d 734).

Here, the defendant failed to establish a reasonable excuse for his default based upon his claim that he was not properly served with process (see Citmortgage, Inc. v. Barton, 212 A.D.3d 706, 708, 183 N.Y.S.3d 108;  Berganza v. Pecora, 192 A.D.3d 743, 744, 139 N.Y.S.3d 898).  “ ‘A process server's affidavit of service gives rise to a presumption of proper service’ ” (Berganza v. Pecora, 192 A.D.3d at 744, 139 N.Y.S.3d 898, quoting Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776, 51 N.Y.S.3d 523).  “ ‘Bare and unsubstantiated denials are insufficient to rebut the presumption of service’ ” (id. [internal quotation marks omitted], quoting Wells Fargo Bank, NA v. Tobing, 175 A.D.3d 745, 747, 107 N.Y.S.3d 89).  “However, ‘[a] sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service’ ” (id., quoting Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d at 776–777, 51 N.Y.S.3d 523).  Here, the affidavit of the plaintiff's process server constituted prima facie evidence that the defendant was properly served pursuant to CPLR 308(2) (see id.).  Contrary to the defendant's contention, his affidavit denying that he resided at the address where service allegedly was effectuated at the time of service was conclusory and unsubstantiated and, therefore, was insufficient to rebut the presumption of proper service (see Zhiying Wang v. Bin Wu, 208 A.D.3d 1211, 1212, 174 N.Y.S.3d 132;  Bank of N.Y. v. Ilonzeh, 203 A.D.3d 1119, 1120–1121, 166 N.Y.S.3d 207).  Moreover, the defendant did not deny that Marine Kvatchadze, who allegedly accepted service on his behalf as his spouse, was his wife and that she accepted service as a person of suitable age and discretion (see U.S. Bank, N.A. v. Daskal, 164 A.D.3d 709, 711, 83 N.Y.S.3d 305).  Thus, the defendant failed to demonstrate a reasonable excuse for his default.  In light of the defendant's failure to proffer a reasonable excuse, this Court need not consider whether the defendant demonstrated the existence of a potentially meritorious defense to the action (see HSBC Bank USA, N.A. v. Gias, 215 A.D.3d 810, 812, 187 N.Y.S.3d 300).

The parties’ remaining contentions either need not be reached in light of our determination, are not properly before this Court, or are without merit.

Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) to vacate the order dated July 28, 2022, granting the plaintiff's unopposed motion for leave to enter a default judgment against the defendant.

DILLON, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.