Justice David Schmidt
Thenor moved to vacate a default judgment entered against him, and dismissal of the complaint for want of prosecution, and lack of personal jurisdiction. Thenor was operating a car owned by Hall, which struck and injured Moore. Moore’s process server made three attempts to personally serve Thenor at his last known address, but was unable to find him, and resorted to “nail and mail” service. Moore was granted a default against Thenor for failing to appear or answer. Thenor argued he had a reasonable excuse and meritorious defense, hence, vacatur of the default was warranted. The court found Thenor’s conclusory denial of receipt of service was insufficient to rebut the presumption of proper service created by a process server’s affidavit. Also, where part of the service consisted of a mailing, there was a presumption that a properly mailed letter was received by the addressee. Thus, the court ruled Thenor was not entitled to vacatur under CPLR 317 or 5015(a) as he failed to show he did not receive actual notice of the action in time to defend, and failed to satisfy the requirement for a meritorious defense. Yet, vacatur was required as service was incomplete as there was no filing of proof of service, which was necessary to trigger a defendant’s responsive obligation under §320(a).
