Sardar v. Birra

Oct 1, 2001
Versions:287 A.D.2d 446
730 N.Y.S.2d 871
2001 N.Y. App. Div. LEXIS 9209

—In an action for specific performance of a contract to sell real property, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated January 16, 2001, as, in effect, denied her cross motion to vacate a judgment entered upon her failure to appear or answer.

Ordered that the order is affirmed insofar as appealed from, with costs.

To vacate a default judgment pursuant to CPLR 5015 (a), a defendant must demonstrate, inter alia, a reasonable excuse *447for the default. Although the defendant claimed that she was not properly served with process, she failed to offer any more than conclusory statements in opposition to the process server’s affidavit, which showed there was proper service under CPLR 308 (4). Under these circumstances, the Supreme Court properly denied the cross motion to vacate the default judgment without a hearing on the issue of service (see, Silverman v Deutsch, 283 AD2d 478; Schiller v Sun Rock Bldg. Corp., 260 AD2d 566; Friedman v Telesco, 253 AD2d 846; Genway Corp. v Elgut, 177 AD2d 467). Altman, J. P., Krausman, Florio and Cozier, JJ., concur.