Court Denies Motion To Vacate Default Judgment Where Defendant Claims He Was Never Served With Process

Posted: October 1, 2025 / Written by: Thomas A. Kissane, Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Default Judgment, Service of Process

Court Denies Motion To Vacate Default Judgment Where Defendant Claims He Was Never Served With Process

On August 6, 2025, Justice Joel M. Cohen denied a defendant’s motion to vacate a default judgment based upon the jurisdictional objection of lack of service of process. In Francesco Marcello v. MK Cuisine Global LLC, et al., Index No. 654805/2022, defendant Matthew Kenney moved for an order vacating a default judgment entered against him because, among other things, he said he had never been served. However, the Court pointed to an affidavit of service stating that a process server had left the summons and complaint with a person of suitable age and discretion at Kenney’s place of business and mailed a copy pursuant to CPLR 308(2). The Court explained:

“To be entitled to vacatur of a default judgment and dismissal of a complaint under CPLR 5015(a)(4), a defendant must overcome the presumption [of proper service] raised by the process server's affidavit of service.” . . . Defendant does not deny that the address listed in the affidavit is his place of business/residence. . . . While Defendant avers that there was an employee of Defendant MK Cuisine Global, LLC who would have been motivated to conceal documents related to this case, that is not the same employee to whom the process server delivered the summons and complaint. . . . Defendant’s speculation as to what might have happened to the multiple copies of the summons and complaint delivered to that address fails to rebut the presumption of proper service created by the affidavit of service.

The attorneys at Schlam Stone & Dolan frequently advise clients concerning default judgments and service of process. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.