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TRUSCELLO v. OLYMPIA CONSTRUCTION, INC.

294 A.D.2d 350 (2002)

741 N.Y.S.2d 709

ROSEMARIE TRUSCELLO et al., Respondents, v. OLYMPIA CONSTRUCTION, INC., Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 6, 2002.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the defendant's motion to vacate its default under CPLR 317 and 5015 (a) (1). With regard to the application for relief under CPLR 317, the defendant failed to demonstrate that it did not receive actual notice of the summons in time to defend. Mere denials of receipt are insufficient to rebut the presumption of proper service created by an affidavit of...

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