Todd Rotwein, D.P.M., P.C. v Goodson (2009 NY Slip Op 50813(U))

Todd Rotwein, D.P.M., P.C. v Goodson

2009 NY Slip Op 50813(U) [23 Misc 3d 135(A)]

Decided on April 24, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Todd Rotwein, D.P.M., P.C., Appellant,

against

Calvin W. Goodson, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Anthony W. Paradiso, J.), dated August 19, 2008. The order granted defendant's motion to vacate a default judgment.

Order reversed without costs and defendant's motion to vacate the default judgment denied.

Plaintiff commenced this action to recover for services rendered to defendant. Defendant failed to appear or answer, and a default judgment was subsequently entered against him. Thereafter, defendant moved to vacate the default judgment.
Relying on CPLR 317, the District Court granted the motion, finding that defendant had raised a potentially meritorious defense. The instant appeal by plaintiff ensued.

CPLR 317, which applies when a person is served other than by personal delivery, is inapplicable here since the affidavit of service of the summons and complaint indicates that said documents were personally delivered to defendant. The affidavit of plaintiff's process server attesting to personal delivery constituted prima facie evidence of proper service (see Parker v Top Homes, Inc., 58 AD3d 817 [2009]) and, in order to rebut this showing, defendant had to submit a sworn, nonconclusory denial of service (see NYCTL 1998-1 Trust v Rabinowitz, 7 AD3d 459 [2004]). Defendant's conclusory sworn allegations that he "did not know that plaintiff filed again" and he "never received any notification about this order" were insufficient to warrant a hearing on the issue of whether personal service was effected upon him.

Consequently, in order to warrant a vacatur of the default judgment, defendant was required to demonstrate a reasonable excuse for his default, as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d [*2]138, 141 [1980]). The aforementioned sworn allegations, however, were also insufficient to demonstrate a reasonable excuse for defendant's default in appearing and answering the complaint. Furthermore, defendant's conclusory statement that "I do not owe Todd Rotwein DPM PC any money," is insufficient to demonstrate a meritorious defense to the action (see Palisades Collection, LLC v Latchman, 21 Misc 3d 142[A], 2008 NY Slip Op 52384[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the District Court's order is reversed and defendant's motion to vacate the default judgment is denied.