Plaintiff, Defendant.

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1 SHORT FORM ORDER Present: _ _-- VINCENT COMANDO, SUPREME COURT - STATE OF NEW YORK HON. JOSEPH A. DE MAR0 Justice TRIAL/IAS, PART 9 NASSAU COUNTY MANMINDER SINGH, -against- Plaintiff, Defendant. MOTION DATE: December 14, 2001 INDEX No. 8343/00 SEQUENCE No The following papers read on this motion: Notice of Motion and Supporting Papers Affirmation in Opposition Reply Affirmation

2 Motion by defendant for an order (a) substituting Jagjit Singh, as Administrator of the Estate of Manminder Singh, deceased, the defendant herein, and (b) renewing the vacating the default judgment dated February to the extent of substituting Jagjit Singh, as prior motion herein 20, 2001, is granted Administrator of the Estate of Manminder Singh, deceased, defendant renewal of the prior motion and, upon to vacate the prior default judgment denied. place of Manminder Singh. 1. The prior order dated September 20, 2000 conditioned leave to renew defendant's motion to vacate upon a proper application for substitution of the appropriate representative party in place of decedent, Manminder Singh. defendant's motion. Comoany, 140 's motion dated February 20, 2001, is The instant motion for substitution pursuant to CPLR 1015 and 1021 is the proper method by which the Court acquires jurisdiction over the personal representative of the deceased plaintiff, not by stipulation. (See: Bossert v Ford Motor herein, and granting renewal, defendant AD2d 480.) Here, the necessary Certificate of Letters of Administration issued to decedent's brother, Jagjit Singh, has been submitted and accordingly, Jagjit Singh is hereby substituted as defendant in Accordingly, the Court will consider Since a properly supported application for substitution has been accomplished, renewal is hereby granted with respect to the motion pursuant to CPLR 5015(a) (1) by defendant for an order vacating the default judgment dated February 20, 2001 and 2

3 entered on March 2, 2001 and upon vacatur, to dismiss the complaint. It is well settled that a party seeking to vacate a default, must make a showing of justifiable excuse for the default and a meritorious defense. (Hazen v Botticlieri, 286 AD2d 708; Beneficial Finance Company of New York, Inc. v Kramer, 48 AD2d 822; Bouxsein v Bialo, 35 AD2d 523.) Defendant's Administrator's attorney relies on the original motion papers. Defendant's contention therein that he does not think he was properly served with process is not an adequate excuse for his default. The affidavit of licensed process server, Frank Agostino, sworn to on June 2, 2000, shows that defendant Manminder Singh was personally served pursuant to CPLR 308 on June 1, 2000 at 12:35 p.m. at 1881 East Tremont Avenue, Bronx, New York, with a Summons and Notice of Motion for Summary Judgment in Lieu of Complaint with supporting documents and RJI bearing an index number and filing date. In defendant's affidavit dated April 19, 2001, the defendant does not deny that he.'was personally served with the Summons and Notice of Motion for Summary Judgment. He merely alleges "I do not know if I was ever served with the Summons * * * I do not have any recollection of having been served". In the absence of a sworn statement that defendant was not served with the Summons, the affidavit of service of the process server is prima facie proof of proper service. (Dennincr v Lettentv, 48 Misc2d 185; Lincoln First Bank-Central, National Association v Joe Bombard Chevrolet, Inc., 55 AD2d 1048.) Personal jurisdiction must be upheld as a matter 3

4 I of law here where plaintiff has met his burden of establishing personal jurisdiction by way of a sworn affidavit of service and the defendant has not denied receipt of such service. (Gutman v Club Mediterranee International, Inc., 218 AD2d 640.) While defendant did not contest the process server's following description of defendant: "Sex Approximate aqe ADZ)rox ht & wt Color of Skin Color of Hair M 28 5'7" 185 lbs Brown Black" defendant does allege that the process server did not mention that defendant had a long beard and wore a turban. Plaintiff, however, has submitted two copies of defendant's driver's license, one issued November 15, 1990 and the other issued October 24, 1994 evidencing the facts that defendant does not have a long and full beard and was not wearing a turban. It is obvious therefrom that defendant did not have a beard and turban is no proof that he had such when served. self-serving statement and his failure to at all times; and there Defendant's conclusory rebut the photos of him without the beard and t&ban are insufficient to claim lack of personal service of process on him. Defendant's attorney's Reply Affirmation is not based upon personal knowledge of the facts at the time defendant was served, but is based upon conjecture and conclusion. In addition, defendant was also served by mail with the order of Mr. Justice Phelan dated September 21, 2000, granting summary judgment without opposition and the directive as to a hearing on the validity of the note. Defendant acknowledged receipt thereof 4

5 in paragraph "1" of his affidavit stating I cannot deny to this Court, however, that I have become aware of this case. I received some mail at home from the attorney and became aware that this matter is being pursued. In all honesty, I knew that I owed the money and did not think that I had any defenses to claims." It, therefore, appears that defendant's sole excuse as to why he defaulted in this action is because he determined on his,own that he had no defense; and, therefore he wilfully and purposely failed to oppose the Motion for Summary Judgment and to appear at the court hearing. Such is not a reasonable excuse for the defendant. (Asterino v Asterino & Associates, Inc., 275 AD2d 517.) Unfamiliarity with the facts or the law in a case is an inadequate excuse. (John Malaskv, Inc. v Mavone, 54 AD2d 1059.) Failure to understand the need to defend or an erroneous assumption concerning the validity of the action certainly does not constitute excusable neglect supporting vacatur of a default judgment. (Stoltz v Plavuuest Theater Company, Inc., 257 AD2d 758.) When a default results not from an isolated, inadvertent mistake, but from repeated neglect of the legal process, there is no incentive for the court to set aside a default judgment. (McCarthy v Chef Italia, Inc., 105 AD2d 992.) Moreover, the record clearly indicates that defendant not only defaulted but that his default was wilful in disregard of the served Summons and Summary Judgment Motion in Lieu of Complaint and the subsequent court order requiring his appearance at the inquest. (See: Rondout Vallev Publishincr Comoanv, Inc. v AM International, Inc., 93 AD2d 912.) 5

6 The absence of an adequate or justifiable excuse for his default, even if the defendant had shown a meritorious defense which he did not (see: Stull v Joseph Feld, Inc., 34 AD2d 655), warrants denial of defendant's application to vacate his default or to dismiss the complaint. (Cavalla v Ernest F. Elliot, Inc., 86 AD2d 884; see also State Bank of Albanv v Guise-ooi Estates, Inc., 44 AD2d 878; Di Gansi v Schiffsens, 90 AD2d 805.) Dated: February 7, 2002