Kokolis v. Wallace

2022 NY Slip Op 01018

Nicholas Kokolis, Respondent, v. Anthony Wallace, Appellant.

No. 2020-01553, Index No. 703957/18

Supreme Court of New York, Second Department

February 16, 2022

Da'Tekena Barango-Tariah, Brooklyn, NY, for appellant.

Hach & Rose, LLP, New York, NY (Natasha Berg of counsel), for respondent.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered January 27, 2020. The order denied the defendant's motion to vacate (1) an amended order of the same court (Joseph Risi, J.), entered October 10, 2018, granting the plaintiff's unopposed motion for leave to enter a default judgment, and (2) a judgment of the same court (Ernest Hart, J.), entered January 15, 2019, made after an inquest on the issue of damages which is in favor of the plaintiff and against the defendant in the principal sum of $193, 413.73.

ORDERED that the order entered January 27, 2020, is modified, on the law and the facts, by deleting the provision thereof denying that branch of the defendant's motion which was to vacate the judgment entered January 15, 2019, and substituting therefor a provision granting that branch of the defendant's motion to the extent of reducing the award from the principal sum of $193, 413.73 to the principal sum of $25, 000 and otherwise denying that branch of the motion as so modified, the order entered January 27, 2020, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate amended judgment.

In March 2018, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained during an alleged armed robbery committed by the defendant. The defendant failed to appear or answer the complaint. In August 2018, the plaintiff moved for leave to enter a default judgment against the defendant. The defendant failed to oppose the motion, and a default judgment was entered against him. On December 6, 2018, an inquest on the plaintiff's damages was held. Thereafter, on January 15, 2019, a judgment after inquest was entered in the plaintiff's favor in the amount of $193, 413.73. In February 2019, the defendant moved to vacate the default judgment and the judgment after inquest, contending, among other things, that he was not properly served with the summons and complaint and, in the alternative, in effect, that the judgment after inquest should be reduced as excessive. In an order entered January 27, 2020, the Supreme Court denied the defendant's motion. The defendant appeals.

"Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" (Dunn v Law Offs. of Evans &amp Al-Shabazz, LLP, 189 A.D.3d 776, 779 [internal quotation marks omitted]; see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141; Flanagan v Delaney, 194 A.D.3d 694, 697). However, "to support a determination granting relief under CPLR 317, a party must still demonstrate, and the Court must find, that the party did not receive actual notice of the summons and complaint in time to defend the action" (Wassertheil v Elburg, LLC, 94 A.D.3d 753, 754 [internal quotation marks omitted]; see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d at 142; Bethpage Fed. Credit Union v Grant, 178 A.D.3d 997, 998). "The mere denial of receipt of the summons and complaint is... insufficient to establish lack of actual notice for the purpose of CPLR 317" (Wassertheil v Elburg, LLC, 94 A.D.3d at 754 [internal quotation marks omitted]; see Bank of N.Y. v Samuels, 107 A.D.3d 653, 654).

A process server's affidavit of service ordinarily constitutes prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) (see Flanagan v Delaney, 194 A.D.3d at 696-697; Bedessee Imports Inc. v Najjar, 170 A.D.3d 640, 640-641). Here, the process server's affidavit asserted that the summons and complaint were delivered to "TYRELL JACKSON, RELATIVE" who was a person of suitable age and discretion and whose physical description was set forth in detail, at an address on Fulton Street in Brooklyn, followed by the required mailing. The process server's affidavit established, prima facie, that the defendant was properly served pursuant to CPLR 308(2). The defendant's claim that he was incarcerated and did not reside at the address where service was effected was directly contradicted by records from the New York State Department of Corrections and Community Supervision, which established that the defendant, who was on parole at the time, was not incarcerated, and confirmed that the address where service was effected was the defendant's reported residence (see former 9 NYCRR 8003.2[d]). The defendant also failed to provide sufficient evidence refuting the process server's averment that a person fitting the description of Tyrell Jackson was present at the defendant's residence at the time and accepted service on behalf of the defendant (see Berganza v Pecora, 192...