Grieco v. Walker

Jun 8, 2004
Versions:8 A.D.3d 66
777 N.Y.S.2d 650
2004 N.Y. App. Div. LEXIS 7900

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered on or about June 2, 2003, which, in an action for breach of contract, insofar as appealed from, denied defendant-appellant’s motion to vacate a default judgment entered against him, unanimously affirmed, without costs.

Appellant fails to show a reasonable excuse for his default in opposing plaintiffs motion pursuant to CFLR 3126 to strike his answer (see Silverman & Weinraub v Gillon, 1 AD3d 142, 143 [2003]). Appellant’s bare denial of receipt of plaintiffs discovery demand, motion to strike, notice of settlement of order granting the motion to strike on default and directing an inquest, and notice of entry of such order is insufficient to overcome the presumption of receipt raised by the properly executed affidavits of service by mail attached to these papers (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Gurwicz v Greenberg, 166 AD2d 303 [1990]). Concur—Nardelli, J.P., Saxe, Sullivan, Marlow and Catterson, JJ.