(DOWNLOAD) "J. Kings Food Service Professionals, Inc. v. Ocean Garden Cafe, Inc." by Appellate Term, Second Department New York Supreme Court # Book PDF Kindle ePub Free
eBook details
- Title: J. Kings Food Service Professionals, Inc. v. Ocean Garden Cafe, Inc.
- Author : Appellate Term, Second Department New York Supreme Court
- Release Date : January 12, 2005
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 77 KB
Description
To vacate a default judgment pursuant to CPLR 5015 (a), a defendant must demonstrate a reasonable excuse for the default and a meritorious defense (Silverman v Deutsch, 283 AD2d 478 [2001]). In the case at bar, defendant Joseph A. Grimaldi claimed that the person served on May 28, 1998, as described in the process servers affidavit of service, does not match any person in his house. Defendant avers that his wife has blond hair, was never 131 to 160 pounds, and that no one lived in the premises or was present at his house. Where, as here, the process server is deceased at the time of the motion, his affidavit of service, if not conclusory and devoid of sufficient detail, shall be admitted in evidence as prima facie proof of service (Smid v Lombard, 83 AD2d 877 [1981]). The affidavit of service alleged personal service pursuant to CPLR 308 (2) by delivering a summons to a person of suitable age and discretion at the dwelling of defendant and by mailing the summons to defendant at his last known residence, to wit, 1 Dorchester Court, Farmingville, New York. The process server described the person served as "Jane Doe," a family member who refused to give her name, approximately 36 - 50 years old, 131 to 160 pounds, 5 4" - 5 8" tall, white, with dark brown hair. The drivers license of defendants wife, which was attached to plaintiffs opposing papers, establishes that she was 36 years of age at the time of service, and described her as 5 feet 5 inches tall. The color of defendants wifes hair and her weight are minor discrepancies which are subject to change.