ROSARIO v. BEVERLY ROAD REALTY COMPANY

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Supreme Court, Appellate Division, Second Department, New York.

Rafael ROSARIO, etc., et al., respondents, v. BEVERLY ROAD REALTY COMPANY, etc., et al., appellants, et al., defendant.

Decided: March 27, 2007

WILLIAM F. MASTRO, J.P., DAVID S. RITTER, PETER B. SKELOS, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Regosin, Edwards, Stone & Feder, New York, N.Y. (Saul E. Feder of counsel), for appellants. Suckle Schlesinger PLLC, New York, N.Y. (Howard A. Suckle of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants Beverly Road Realty Company and Sheldrake Management, Inc., appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated January 3, 2006, which, without a hearing, denied their motion pursuant to CPLR 5015(a)(1) and (4) to vacate their default in appearing and answering the complaint.

ORDERED that the order is affirmed, with costs.

 The affidavits of the process servers constituted prima facie evidence of proper service upon the defendant Beverly Road Realty Company (hereinafter Beverly Road Reality) pursuant to CPLR 310(c) and upon the defendant Sheldrake Management, Inc. (hereinafter Sheldrake Management), pursuant to Business Corporation Law § 306(b). The unsubstantiated denials of service of the summons and complaint by Leib Puretz, a partner of Beverly Road Realty and an officer of Sheldrake Management, were insufficient to rebut the prima facie showing (see General Motors Acceptance Corp. v. Grade A Auto Body, Inc., 21 A.D.3d 447, 799 N.Y.S.2d 748;  Household Fin. Realty Corp. of N.Y. v. Brown, 13 A.D.3d 340, 785 N.Y.S.2d 742;  Carrenard v. Mass, 11 A.D.3d 501, 782 N.Y.S.2d 810).   Accordingly, that branch of the motion of Beverly Road Realty and Sheldrake Management (hereinafter collectively the appellants) which was pursuant to CPLR 5015(a)(4) to vacate their default in appearing and answering the complaint was properly denied without a hearing (see 96 Pierrepont v. Mauro, 304 A.D.2d 631, 757 N.Y.S.2d 468).

 Furthermore, in light of the disclaimer letters from the appellants' insurance carriers, the appellants failed to demonstrate a reasonable excuse for their delay of about six years in seeking to interpose an answer (see Ramirez v. Rao, 23 A.D.3d 447, 805 N.Y.S.2d 569;  Thompson v. Steuben Realty Corp., 18 A.D.3d 864, 865, 795 N.Y.S.2d 470;  Robinson v. 1068 Flatbush Realty, Inc., 10 A.D.3d 716, 716-717, 781 N.Y.S.2d 901).   Accordingly, the court also properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(1) to vacate their default in appearing and answering the complaint (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, 463 N.Y.S.2d 192, 449 N.E.2d 1270).

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