You are here: / / Defendant’s Submissions Did Not Rebut the Presumption of Receipt...

Defendant’s Submissions Did Not Rebut the Presumption of Receipt of the Summons and Complaint Properly Sent by Ordinary Mail

The Second Department determined defendant’s claims he was out of the country when the summons and complaint were mailed and never received them were insufficient to overcome the presumption of receipt based upon proper mailing by ordinary mail:

In support of that branch of his cross motion which was pursuant to CPLR 5015(a)(1), the defendant was required to demonstrate a reasonable excuse for his default in answering the complaint … . In support of his contention that he had a reasonable excuse, the defendant claimed that he was out of the country …, and when he returned to the United States there were no summons and complaint or notice of this action in the mail. The defendant’s submissions, however, failed to rebut the presumption of receipt based on proof of the proper mailing of the summons and complaint by ordinary mail … . Therefore, the defendant failed to establish a reasonable excuse for his default in answering the complaint … .

In support of that branch of his motion which was pursuant to CPLR 317, the defendant was required to demonstrate that he did not personally receive notice of the summons in time to defend and a potentially meritorious defense (see CPLR 317…). The evidence demonstrating that copies of the summons and complaint were mailed to the defendant at the correct residential address created a presumption of proper mailing and of receipt, and the defendant’s mere denial of receipt was insufficient to rebut that presumption … .  Williamson v Marlou Cab Corp., 2015 NY Slip Op 04636, 2nd Dept 6-3-15

 

You might also like
THE DEFENSE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING IN THIS CEILING-COLLAPSE CASE; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). ​
THE ALLEGEDLY DEFAMATORY STATEMENTS MADE IN A KOREAN-LANGUAGE CHAT ROOM WERE PROTECTED BY QUALIFIED PRIVILEGE, CRITERIA EXPLAINED (SECOND DEPT).
DEFENDANTS’ FAILURE TO DEMONSTRATE AREA WHERE PLAINTIFF FELL WAS ADEQUATELY ILLUMINATED, AND FAILURE TO AFFIRMATIVELY DEMONSTRATE DEFENDANTS DID NOT CREATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION, REQUIRED DENIAL OF DEFENSE MOTION FOR SUMMARY JUDGMENT.
Court’s Failure to Share Entire Contents of Note from Jury Constituted a Mode of Proceedings Error Requiring Reversal
IN THIS ELEVATOR-ACCIDENT CASE, THE BUILDING OWNERS WERE ENTITLED TO A CONDITIONAL JUDGMENT ON CONTRACTUAL INDEMNIFICATION AGAINST THE ELEVATOR-MAINTENANCE COMPANY BEFORE THE PRIMARY ACTION IS DETERMINED (SECOND DEPT).
THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES, CONVERSION CAUSE OF ACTION CANNOT BE BASED UPON BREACH OF CONTRACT ALONE.
QUESTION OF FACT WHETHER CITY LIABLE FOR FAILURE TO INSTALL A STOP SIGN AT AN ACCIDENT-PRONE INTERSECTION.
Late Motion to Amend Complaint Should Have Been Granted–No Showing of Prejudice

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Trial Court Has the Discretion to Determine the Best Venue for Consolidated... Complaint Sufficiently Alleged a Cause of Action for Unjust Enrichment—an...