Summary
This uncorrected slip opinion from the New York Appellate Division, Second Department, affirms a trial court's order denying the defendant's motion to vacate a default judgment and compel acceptance of a late answer. The court held that the defendant failed to rebut the presumption of proper service created by the process server's affidavit and did not demonstrate a reasonable excuse for his default or a potentially meritorious defense. Additionally, the motion to vacate on grounds of excusable default was untimely under CPLR 5015(a)(1).
Topics
Practice areas
Questions Presented
- Whether the defendant can overcome the presumption of proper service created by the plaintiff's process server affidavit.
- Whether the motion to vacate the default judgment under CPLR 5015(a)(1) was timely and therefore proper.
Holdings
- The presumption of proper service is not overcome by minor discrepancies or a bare denial; the defendant failed to defeat the presumption and the motion to vacate was denied.
- A motion to vacate a default judgment under CPLR 5015(a)(1) must be filed within one year of service of the judgment; the defendant's motion was untimely and therefore denied.
Key quotations
“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)”
Factual background
The plaintiff, Marie Nurhan, sued House Harley to quiet title to residential property in Freeport, alleging a fraudulent conveyance. Harley failed to appear, leading to a default judgment on June 20, 2019 that set aside the conveyance and declared Nurhan the fee owner. Harley later filed a late answer and moved to vacate the judgment and to compel acceptance of his answer.
Procedural history
Nurhan commenced an action under RPAPL article 15 to quiet title and set aside a purported fraudulent conveyance. The defendant failed to answer, resulting in a default judgment on June 20, 2019. In November 2021 the defendant moved to vacate the judgment under CPLR 5015(a) and to compel acceptance of a late answer under CPLR 3012(d). The trial court denied both motions. The defendant appealed.