ROBERT SPANO PLUMBING HEATING INCORPORATED v. SUMMIT FARM REALTY INC (2025)

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated May 6, 2024.  The order denied the defendant's motion pursuant to CPLR 5015(a)(4) to vacate a clerk's judgment of the same court entered August 30, 2021, upon the defendant's failure to appear or answer the complaint, which is in favor of the plaintiff and against the defendant in the total sum of $22,974.84.

ORDERED that the order is affirmed, with costs.

The plaintiff, a plumbing and heating business, commenced this action against the defendant, a New York corporation, to recover damages equal to the remaining balance, plus interest and costs from June 9, 2020, for services rendered and materials delivered by the plaintiff to the defendant.  The defendant failed to appear or answer the complaint.  On August 30, 2021, upon the defendant's default, a clerk's judgment was entered in favor of the plaintiff and against the defendant in the total sum of $22,974.84 (hereinafter the default judgment).

In February 2024, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the default judgment for lack of jurisdiction.  The plaintiff opposed the motion.  In an order dated May 6, 2024, the Supreme Court denied the defendant's motion.  The defendant appeals.  We affirm.

“[A] process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Nurhan v. Harley, 237 A.D.3d 728, 729–730, 231 N.Y.S.3d 216 [internal quotation marks omitted];  see Finnegan v. Trimarco, 173 A.D.3d 691, 692, 103 N.Y.S.3d 459).  “To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service” (Nurhan v. Harley, 237 A.D.3d at 730, 231 N.Y.S.3d 216 [internal quotation marks omitted]).  “[A] bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit” (id. [internal quotation marks omitted];  see GMAC Mtge., LLC v. Eberle, 172 A.D.3d 822, 823, 100 N.Y.S.3d 367).

Here, the defendant's submissions in support of its motion were insufficient to defeat the presumption of proper service created by the affidavit of the plaintiff's process server (see Nurhan v. Harley, 237 A.D.3d at 730, 231 N.Y.S.3d 216;  see also Deutsche Bank Natl. Trust Co. v. Hossain, 187 A.D.3d 986, 987, 131 N.Y.S.3d 202).  The unsigned affidavit submitted in support of the defendant's motion was inadmissible and insufficient to warrant a hearing on the issue of service (see Nurhan v. Harley, 237 A.D.3d at 730, 231 N.Y.S.3d 216;  see generally SunTrust Bank v. Morris, 169 A.D.3d 951, 952, 92 N.Y.S.3d 710).

The defendant's remaining contentions are either without merit or improperly raised for the first time in reply (see Pena v. Geisinger Community Med. Ctr., 209 A.D.3d 663, 663, 174 N.Y.S.3d 873).

Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 5015(a)(4) to vacate the default judgment.

DUFFY, J.P., MILLER, LANDICINO and HOM, JJ., concur.