Tiffany Chen, Respondent, v. Jun Chao Tan, Also Known as Junchao Tan and Chang Cui Liu, Also Known as Chang Cui Lui, Appellants. (2024)

ORDERED that the order is affirmed, without costs.

In this small claims action, defendants appeal from an order of the District Court (Norman A. Sammut, J.), dated October 11, 2023 denying their motion to vacate a judgment of that court entered July 13, 2023 upon defendants' failure to appear at a scheduled hearing. The judgment awarded plaintiff the principal sum of $5,000 on her claim that she was entitled to a refund of payments she had made to defendants for dance classes for her son.

It is well settled that in order to vacate a default judgment based upon an excusable default, a defendant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Nationstar Mtge., LLC v McLean, 140 AD3d 1131, 1132 [2016]; Santiago v New York City Health & Hosps. Corp., 10 AD3d 393 [2004]).

Here, while the record establishes that the court's certified mailing of the summons was returned unclaimed, its first-class mailing was not "returned as undeliverable" (UDCA 1803 [a]). "If after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of [the] claim" (UDCA 1803 [a]; see Armen v Einsidler Mgt., Inc., 73 Misc 3d 136[A], 2021 NY Slip Op 51068[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Defendants' purported excuse for their default was a conclusory and unsubstantiated denial of receipt of service which did not rebut the presumption of receipt (see HSBC Bank USA, N.A. v Powell, 148 AD3d 1123 [2017]; Town House St., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 AD3d 893, 894 [2006]). In view of the foregoing, we need not determine whether defendants had a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]; ACT Props., LLC v Garcia, 102 AD3d 712 [2013]).

Accordingly, the order is affirmed.

WALSH, J.P., McCORMACK and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 25, 2024