By: Edmead, P.J., Higgitt, McShan, JJ. 15-405. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JOHNNY ABUNDIS, def-app — Judgment of conviction (Erika M. Edwards, J. at first speedy trial motion; Ann E. Scherzer, J. at second speedy trial motion; Gilbert C. Hong, J., at trial and sentencing), rendered September 19, 2014 affirmed. The verdict convicting defendant of forcible touching (see Penal Law §130.52[2]) and sexual abuse in the third degree (see Penal Law §130.55) was not against the weight of the evidence (see People Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis to disturb the jury’s credibility determinations, in which it credited the testimony of the victim and two police officers who witnessed the incident, and found defendant not to be credible (see People v. Ramos, 166 AD3d 442 [2018], lv denied 32 NY3d 1177 [2019]). Defendant’s speedy trial motions were properly denied. The period from January 29, 2014 to February 21, 2014 was excludable since defendant was in the custody of ICE, and the People demonstrated that they were diligent and made reasonable efforts to secure defendant’s presence (see CPL §30.30[4][e]; People v. Pierce, 38 AD3d 262 [2007], lv denied 8 NY3d 989 [2007]; People v. Cain, 291 AD2d 326, 327 [2002], lv denied 98 NY2d 673 [2002]; People v. Smith, 138 AD2d 972 [1988], affd 73 NY2d 961 [1989]). With regard to the second period in dispute, the record shows that the People answered ready on July 22, 2014, but the case had to be adjourned because no trial parts were available. Although the People initially indicated that they would be available on July 28, they corrected that statement later in the day to indicate that the soonest their witnesses would be ready was on August 11th, and the court adjourned the matter to that date. In the circumstances, having explained their reasonable request for a certain number of days, the delay from July 28, 2014 to August 11, 2014 was properly attributed to delays of the court calendar and thus was also excludable (see People v. Goss, 87 NY2d 792, 797 [1996]). All concur THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
By: Edmead, P.J., Higgitt, McShan, JJ. 21-001. JAMES MILONIS, AS TRUSTEE OF JAMES MILONIS’ DECLARATION OF TRUST DATED MAY 12, 2005, pet-res, v. 3273-3285 WESTCHESTER AVENUE REALTY CORP., res-app; -and- NATALIE ACEVEDO D/B/A GANA LIQUOR WINE & SPIRITS CORP., res; -and- JOSE PEREZ d/b/a SAZON RESTAURANT, res-app; -and- PEGHE’S DELI & GROCERY, INC., SONIA MONTANEZ d/b/a TEXAS CHICKEN, RUBIN RODRIGUEZ d/b/a CROSBY CLEANERS, res — Order (Fidel E. Gomez, J.), dated November 4, 2019, affirmed, with $10 costs. Respondents’ motion to vacate the default final judgment for lack of jurisdiction was properly denied by Civil Court in a comprehensive decision. The affidavit of service demonstrates that substituted service was properly made pursuant to RPAPL 735(1), by delivery of the papers to an employee at the subject premises (see 116 John St. Owner, LLC v. Chea Kim, 59 Misc 3d 148[A], 2018 NY Slip Op 50784[U] [App Term, 1st Dept 2018]; 113 Downtown LLC v. B & G Enters. of Staten Is. Inc., 2002 NY Slip Op 50355[U] [App Term, 1st Dept 2002]). The carefully worded affidavit of Radame Jose Perez submitted in support of the vacatur motion does not rebut the statements in the process server’s affidavits, but merely contains conclusory assertions that respondents “never received any papers in the proceeding,” and was therefore insufficient to warrant a traverse hearing (see Washington Mut. Bank v. Huggins, 140 AD3d 858, 859 [2016]; Perilla v. Carchi, 100 AD3d 429, 430 [2012]; Matter of de Sanchez, 57 AD3d 452, 454 [2008]). Civil Court also providently exercised its discretion in denying respondents’ CPLR 5015(a)(1) motion to vacate their default. Inasmuch as the only excuse offered is the meritless improper service argument, respondents have no excuse for the default and the motion to vacate should have been denied regardless of whether they have a meritorious defense (see Citibank, N.A. v. K.L.P. Sportswear, Inc., 144 AD3d 475, 476-477 [2016]; Time Warner City Cable v. Tri State Auto, 5 AD3d 153 [2004], lv dismissed 3 NY3d 656 [2004]). In any event, respondents’ assertion that the base rent was paid was insufficient to demonstrate a meritorious defense to this action for some $80,000 in unpaid “added rent charges,” including real estate taxes and water and sewer charges. All concur THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
