New York State Supreme Court, Appellate Division, Fourth Judicial Department
Vacating a default judgment
Presumption of service – Sanctions
Appealed from Supreme Court, Erie County
Background: The defendant appealed from an order denying his motion to vacate a default judgment granted against him and from an order denying his second motion and granting the plaintiff’s request for sanctions against him.
Ruling: The Appellate Division affirmed. The court held that the defendant failed to rebut the presumption of proper service. The defendant’s assertions that he was not present in Nevada where the summons and complaint had been served at the time of service was unsubstantiated. Furthermore, his second motion was a motion to renew and he offered no new evidence for consideration. The Appellate Division reversed the imposition of sanctions as the defendant was attempting to provide the court with additional factual support for his first motion.
Jeffrey Benjamin, of the Linden Law Group, for the defendant-appellant; James M. Specyal, of Wells Law, for the plaintiff-respondent.