        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1106
CA 13-00550
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


MARIE M. WRIGHT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL DENARD, DEFENDANT-RESPONDENT.


DIBBLE & MILLER, P.C., ROCHESTER (CRAIG D. CHARTIER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered June 29, 2012 in a breach of contract action. The
order granted the motion of defendant to vacate a default judgment and
order, and to extend the time in which to serve an answer.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the judgment and order entered on defendant’s default is
reinstated.

     Memorandum: In this breach of contract action, plaintiff appeals
from an order granting defendant’s motion to vacate the judgment and
order entered against him upon his default in answering the complaint
and to extend the time in which to serve an answer. We agree with
plaintiff that Supreme Court erred in granting defendant’s motion.
Although defendant did not specify the statutory basis for his motion,
we note that it appears that he sought relief pursuant to CPLR 5015
(a) (1) and (4), based on excusable neglect and lack of jurisdiction.
Addressing first CPLR 5015 (a) (4), defendant was not entitled to
vacatur on the ground that the court lacked jurisdiction over him (see
Pilawa v Dalbey, 275 AD2d 1035, 1036). The affidavit of plaintiff’s
process server constituted prima facie evidence that defendant was
personally served pursuant to CPLR 308 (1) (see Reich v Redley, 96
AD3d 1038, 1038), and defendant failed to rebut the presumption of
proper service by providing “specific facts to rebut the statements in
the process server’s affidavit[]” (Indymac Fed. Bank FSB v Quattrochi,
99 AD3d 763, 764 [internal quotation marks omitted]; see Christiana
Bank & Trust Co. v Eichler, 94 AD3d 1170, 1170-1171). Here, defendant
submitted an affidavit in which he averred that he is brown-skinned
and balding, not black-skinned and bald as described in the process
server’s affidavit. Defendant did not, however, dispute the age,
height and weight set forth in the affidavit of the process server,
and he failed to identify the six-foot tall, more than 200-pound
individual who allegedly accepted service at his residence. We thus
conclude that defendant’s “denial of service in this case was
                                 -2-                         1106
                                                        CA 13-00550

insufficient to rebut the presumption of proper service created by the
plaintiff’s duly executed affidavit of service” (Reich, 96 AD3d at
1038; see generally Matter of Nazarian v Monaco Imports, 255 AD2d 265,
265-266). To the extent that defendant’s motion was based on
excusable default pursuant to CPLR 5015 (a) (1), we likewise conclude
that he “failed to establish a reasonable excuse for his default [in
answering the complaint inasmuch as] the only excuse he proffered was
that he was not served with process” (Stephan B. Gleich & Assoc. v
Gritsipis, 87 AD3d 216, 221; see Reich, 96 AD3d at 1039; see generally
Pilawa, 275 AD2d at 1036).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
