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National Loan Recoveries, LLC v. Antonio Smith

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


March 5, 2012

NATIONAL LOAN RECOVERIES, LLC, RESPONDENT, --
v.
ANTONIO SMITH,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin K. Sheares, J.), entered August 6, 2010.

National Loan Recoveries, LLC v Smith

Decided on March 5, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

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

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action to recover for breach of a credit card agreement and upon an account stated. A default judgment was entered against defendant on August 30, 2006. Defendant moved to vacate the default judgment, alleging, among other things, that he had not been served. In opposition to the motion, plaintiff submitted the process server's affidavit of service as evidence of proper service. The Civil Court denied defendant's motion.

The affidavit of plaintiff's process server attesting to the "nail and mail" service of the summons and complaint (see CPLR 308 [4]) constituted prima facie evidence of proper service. Defendant's conclusory denial of receipt of the summons and complaint was insufficient to rebut the presumption of proper service (see Irwin Mtge. Corp. v Devis, 72 AD3d 743 [2010]; Roberts v Anka, 45 AD3d 752 [2007]).

As defendant failed to establish a reasonable excuse for his default, it is unnecessary to consider whether he sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, the order is affirmed.

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

Date: March 05, 2012

20120305

© 1992-2012 VersusLaw Inc.



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