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Evelyn Endlich, Respondent v. Joan Sara Sweet

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 2, 2012

EVELYN ENDLICH, RESPONDENT, --
v.
JOAN SARA SWEET, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Laurie Lynne Lau, J.), entered July 21, 2010.

Endlich v Sweet

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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2012

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order denied tenant's motion to vacate a default final judgment.

ORDERED that the order is affirmed, without costs.

In this holdover proceeding, tenant failed to appear for trial. After an inquest, a default final judgment of possession was entered. Tenant moved to vacate the default final judgment, alleging, among other things, that she had been ill and that she had been improperly served. The Civil Court denied the motion, finding that tenant had failed to demonstrate a reasonable excuse for her default and a meritorious defense to the proceeding. Tenant is no longer in possession of the premises.

We agree with the Civil Court that tenant did not establish sufficient grounds for the relief sought in her motion. Contrary to tenant's contention, the detailed affidavit of service constituted prima facie evidence of proper service (see Parker v Top Homes, Inc., 58 AD3d 817 [2009]). In order to rebut this showing, tenant had to submit a sworn, nonconclusory denial of service (see Friedman v Eisner, 23 Misc 3d 136[A], 2009 NY Slip Op 50817[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). However, tenant's affidavit in support of the motion failed to rebut the presumption of proper service.

Tenant's remaining grounds for vacatur of the default judgment are improperly raised for the first time on appeal or without merit.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: March 02, 2012

20120302

© 1992-2012 VersusLaw Inc.



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