ALLEN v. TILAK (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered September 17, 2024.  The order denied the defendant's motion, inter alia, pursuant to CPLR 5015(a) to vacate a judgment of the same court (Frederick D.R. Sampson, J.) entered May 3, 2018, upon his default in appearing or answering the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

In December 2015, the plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained as a result of a trip and fall on a sidewalk adjacent to certain real property owned by the defendant.  The defendant failed to appear or answer the complaint.  In an order dated June 28, 2016, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment against the defendant.  On May 3, 2018, the court entered a judgment, upon the defendant's default in appearing or answering the complaint, in favor of the plaintiff and against the defendant.

In April 2024, the defendant moved, inter alia, pursuant to CPLR 5015(a) to vacate the judgment.  In an order entered September 17, 2024, the Supreme Court denied the motion.  The defendant appeals.

“Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)” (Nurhan v. Harley, 237 AD3d 728, 729 [internal quotation marks omitted];  see Tuttnauer USA Co., Ltd. v. Russo, 216 AD3d 846, 846–847).

“[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 AD3d at 729–730 [internal quotation marks omitted];  see Wilmington Sav. Fund Socy., FSB v Zabrowsky, 212 AD3d 866, 869).  “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits” (Scarano v. Scarano, 63 AD3d 716, 716 [citation and internal quotation marks omitted];  see Tuttnauer USA Co., Ltd. v. Russo, 216 AD3d at 847).  “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” (RG Remodeling, Inc. v. Greco, 231 AD3d 757, 758 [internal quotation marks omitted] ).  Here, the defendant's bare and unsubstantiated denials failed to rebut the specific facts contained in the process server's affidavits of service, and no hearing was required (see Nurhan v. Harley, 237 AD3d at 730;  RG Remodeling, Inc. v. Greco, 231 AD3d at 758;  Tuttnauer USA Co., Ltd. v. Russo, 216 AD3d at 847).

“A party seeking to vacate a default judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a potentially meritorious defense to the action” (Cerullo v. City of New York, 230 AD3d 560, 561).  “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (HSBC Bank USA, N.A. v. Gallo, 238 AD3d 1123, 1125 [internal quotation marks omitted] ).  “Although a court may vacate its own judgment for sufficient reason and in the interests of substantial justice even after expiration of the one-year limitations period set forth in CPLR 5015, where a movant fails to demonstrate a reasonable excuse for the lengthy delay in moving to vacate the order or judgment, there is no basis to extend the one-year period in the exercise of discretion (OneWest Bank, FSB v. Singer, 237 AD3d 731, 733 [citations and internal quotation marks omitted] ).

Here, that branch of the defendant's motion which was to vacate the judgment on the ground of excusable default pursuant to CPLR 5015(a)(1) was untimely, as it was made more than one year after a copy of the judgment was served upon the defendant with notice of entry (see Nurhan v. Harley, 237 AD3d at 731).  The defendant failed to establish a reasonable excuse for the delay in moving to vacate the judgment (see OneWest Bank, FSB v. Singer, 237 AD3d at 733), and, in any event, he failed to establish a reasonable excuse for his default in appearing or answering the complaint (see Cerullo v. City of New York, 230 AD3d at 561).

Since the defendant failed to demonstrate a reasonable excuse, it is not necessary to determine whether he established the existence of a potentially meritorious defense (see Nurhan v. Harley, 237 AD3d at 731;  Cerullo v. City of New York, 230 AD3d at 561–562).

Accordingly, the Supreme Court properly denied the defendant's motion, inter alia, pursuant to CPLR 5015(a) to vacate the judgment upon his default in appearing or answering the complaint.

IANNACCI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.