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Chaudry Construction Corp. v. James G. Kalpakis & Associates

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 24, 2009

CHAUDRY CONSTRUCTION CORP., PLAINTIFF-RESPONDENT,
v.
JAMES G. KALPAKIS & ASSOCIATES, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (John E.H. Stackhouse, J.), entered September 15, 2008, which denied defendant's motion to vacate a default judgment, unanimously reversed, on the law, without costs, the motion granted, and the answer reinstated. Appeal from earlier interim order, same court and Justice, later entered September 26, 2008, which granted defendant's motion to vacate the default to the extent of setting the matter down for a traverse hearing, unanimously dismissed, without costs, as academic.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Friedman, Sweeny, Renwick, Freedman, JJ.

108933/02

Even assuming the affirmations of service by plaintiff's counsel sufficiently raised a presumption of proper mailing, defendant rebutted that presumption by showing they were mailed to an incorrect address (see Matter of Holland v New York City, 271 AD2d 609, 610 [2000]), necessitating a traverse hearing (see Northern v Hernandez, 17 AD3d 285 [2005]). Furthermore, defendant's submissions offered factual support for a meritorious defense (see Mandell v Stein, 183 AD2d 488 [1992]).

At the traverse hearing, plaintiff failed to carry its burden of establishing proper service. Under such circumstances, the court erred in shifting that burden to defendant to disprove service.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090324

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