Court Refuses to Vacate Default Judgment Despite Conclusory Assertions That Service Not Received When Defendant Admitted Being Aware of the Action

On January 2, 2020, the First Department issued a decision in Fisher v. Lewis Constr. NYC Inc., 2020 NY Slip Op. 00041, refusing to vacate a default judgment despite conclusory denials of service, explaining:

Defendant failed to establish a reasonable excuse for its default. Plaintiff properly served defendant corporation by means of service upon the Secretary of State, and the records indicate that it was a viable corporation at the time. Service of process was complete when plaintiff served the Secretary of State, irrespective of whether the process subsequently reached the corporate defendant. Defendant's conclusory denial of receipt of service fails to rebut the presumption of proper service created by the affidavit of service, and defendant's excuse that its registered address, where plaintiff mailed additional service and subsequent notices, was not a reliable mail drop, is unavailing. By its own account, defendant's failure to answer appears to have been willful and dilatory.

Defendant also failed to show a lack of actual notice of the action. Both its principal and its attorney acknowledged they had actual notice before plaintiff served the Secretary of State, thereby giving it sufficient time to defend.

(Internal quotations and citations omitted).

If you are served with a complaint and fail timely to answer, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.