Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), dated March 23, 2010. The order granted tenant's motion to vacate a default final judgment and the warrant issued pursuant thereto, and dismissed the petition.
Citi Land Servs., LLC v McDowell
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 14, 2011
PRESENT: WESTON, J.P., GOLIA and RIOS, JJ .
ORDERED that the order is reversed, without costs, and tenant's motion to vacate the default final judgment and the warrant issued pursuant thereto is denied without prejudice to tenant moving in the Civil Court for a stay of the warrant.
In this residential nonpayment summary proceeding, tenant moved to vacate a default final judgment that had been entered against her, and the warrant that had been issued pursuant thereto, alleging, among other things, that she had not been served with an "eviction notice." To the extent that tenant may have been alleging improper service of the notice of petition and petition, and thus a lack of personal jurisdiction (see CPLR 5015 [a] ), that allegation was waived because it was not raised in her answer (CPLR 3211 [e]). In any event, her conclusory assertion that she was not served is insufficient to rebut the presumption of proper service created by the affidavit of personal service (see Montefiore Med. Ctr. v Auto One Ins. Co., 57 AD3d 958 ).
Tenant also failed to demonstrate a reasonable excuse for her default (CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 ). With regard to her claim of a meritorious defense, we note that, to the extent that tenant may have been alleging that she had not been served with a predicate rent notice, the affidavit of service of the rent notice constitutes prima facie proof of its service (Bham v Wilson, 10 Misc 3d 72 [App Term, 9th & 10th Jud Dists 2005]) and tenant's conclusory assertion that she was not served with an "eviction notice" is insufficient to rebut the presumption of proper service (see First Ave. Owners Corp. v Riverwalk Garage Corp., 6 Misc 3d 439 ). Moreover, by failing to challenge service of a rent notice in her answer, tenant waived this objection (Bham, 10 Misc 3d 72).
Accordingly, the order is reversed, tenant's motion is denied, and the default final judgment and warrant are reinstated. Inasmuch as tenant is alleging that landlord's principal is the father of her minor child, our determination is without prejudice to tenant moving in the Civil Court for a stay of the warrant upon a showing that landlord's principal is not paying support which includes an allowance for alternate housing for the child (Sears v Okin, 16 Misc 3d 134[A], 2007 NY Slip Op 51510[U] [App Term, 9th & 10th Jud Dists 2007])
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 14, 2011
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