

Gorman v English (2016 NY Slip Op 01786)





Gorman v English


2016 NY Slip Op 01786


Decided on March 15, 2016


Appellate Division, First Department


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


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 15, 2016

Tom, J.P., Acosta, Renwick, Moskowitz, JJ.


526 154978/15

[*1]Grace Gorman, et al., Plaintiffs-Appellants,
vJordan English also known as Jordan Gross, Defendant-Respondent, Mobility Places, Inc., Defendant.


Robinson McDonald & Canna LLP, New York (Brett G. Canna of counsel), for appellants.
Merle, Brown & Nakamura, P.C., New York (Stephen H. Nakamura of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 5, 2015, which, inter alia, denied plaintiffs' motion for a default judgment against defendant Jordan English, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying plaintiffs' motion for a default judgment. Although plaintiffs submitted an affidavit of the process server stating that service was made, defendant English successfully rebutted the presumption that the summons and complaint had been received, by submitting a sworn affidavit stating that he never received the summons and complaint and evidence that his building had no record of his receiving a package on the days he was allegedly served (see Velez v Forcelli, 125 AD3d 643, 644 [2d Dept 2015]). Furthermore, the record demonstrates that the delay was minimal, there was no prejudice to plaintiffs, no showing of willfulness on English's part, and there is a strong public policy in favor of resolving cases on the merits (see New Media Holding Co. LLC v Kagalovsky, 97 AD3d 463, 465-466 [1st Dept 2012]).
English's submissions also establish that he has a meritorious defense to plaintiffs' [*2]allegations. Contrary to plaintiffs' contention, English's affidavit contained more than "conclusory allegations or vague assertions" in response to plaintiffs' claims (Peacock v Kalikow, 239 AD2d 188, 190 [1st Dept 1997] [internal quotation marks omitted]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2016
CLERK


