Appellate Division of the Supreme Court of New York, 2002

Truscello v. Olympia Construction, Inc.

Appellate Division of the Supreme Court of New York · Decided May 6, 2002

294 A.D.2d 350; 741 N.Y.S.2d 709; 2002 N.Y. App. Div. LEXIS 4872

Cases that cite this one

14 later published cases cite this decision.

Clover M. Barrett, P.C. v. Gordon (Appellate Division of the Supreme Court of New York 2011)
Trini Realty Corp. v. Fulton Center LLC (Appellate Division of the Supreme Court of New York 2008)
Montefiore Medical Center v. Auto One Insurance (Appellate Division of the Supreme Court of New York 2008)
Levine v. Forgotson's Central Auto & Electric, Inc. (Appellate Division of the Supreme Court of New York 2007)
Jefferson v. Netusil (Appellate Division of the Supreme Court of New York 2007)
Han v. Bark (Appellate Division of the Supreme Court of New York 2006)
Commissioners of State Insurance Fund v. Nobre, Inc. (Appellate Division of the Supreme Court of New York 2006)
Town House St., LLC v. New Fellowship Full Gospel Baptist Church, Inc. (Appellate Division of the Supreme Court of New York 2006)
Lemberger v. Congregation Yetev Lev D'Satmar, Inc. (Appellate Division of the Supreme Court of New York 2006)
Philippi v. Metropolitan Transportation Authority (Appellate Division of the Supreme Court of New York 2005)
General Motors Acceptance Corp. v. Grade A Auto Body, Inc. (Appellate Division of the Supreme Court of New York 2005)
Die Matic Products, Inc. v. Flair International Corp. (Appellate Division of the Supreme Court of New York 2005)
Carrenard v. Mass (Appellate Division of the Supreme Court of New York 2004)
New York Telephone Co. v. Don Siegel Construction Co. (Appellate Division of the Supreme Court of New York 2003)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action to *351recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated April 27, 2001, which denied its motion to vacate a judgment of the same court (Slavin, J.H.O.), entered October 12, 2000, in favor of the plaintiffs and against it in the principal sum of $150,000, upon its default in answering the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendant’s motion to vacate its default under CPLR 317 and 5015 (a) (1). With regard to the application for relief under CPLR 317, the defendant failed to demonstrate that it did not receive actual notice of the summons in time to defend. Mere denials of receipt are insufficient to rebut the presumption of proper service created by an affidavit of service (see De La Barrera v Handler, 290 AD2d 476; Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453; Facey v Heyward, 244 AD2d 452). Denial of the application for relief pursuant to CPLR 5015 (a) (1) also was proper, since the defendant failed to proffer a reasonable excuse for its default (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138; De La Barrera v Handler, supra; Schiller v Sun Rock Bldg. Corp., 260 AD2d 566). Prudenti, P.J., Feuerstein, Friedmann and H. Miller, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.