On August 6, 2025, Justice Cohen of the New York County Commercial Division issued a decision in Marcello v. MK Cuisine Global LLC, 2025 NY Slip Op. 33048(U), holding that a denial of receipt of service, without more, is insufficient to overcome the presumption of proper service created by an affidavit of service, explaining:
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. Bare and unsubstantiated denials are insufficient to rebut the presumption of service.
Defendant claims he was never served in this action and that there is no affidavit of service proving otherwise. That is not the case: the process server’s affidavit notes that the summons and complaint in this action were delivered to a person of suitable age and discretion at Defendant’s place of business (also believed to be his residence) and mailed to Defendant at the same address in accordance with the requirements of CPLR 308(2) on February 21, 2023 and March 6, 2023, respectively.
Defendant does not deny that the address listed in the affidavit is his place of business/residence. Indeed, Defendant’s counsel in another action affirmed that service of counsel’s motion to withdraw was made on Matthew Kenney at the same address. 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. Defendant’s motion under CPLR 5015(a)(4) thus fails.
(Internal quotations and citations omitted).