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104 Realty, LLC v. Olajide Johnson

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


June 11, 2012

104 REALTY, LLC, RESPONDENT,
v.
OLAJIDE JOHNSON, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered May 2, 2011.

104 Realty, LLC v Johnson

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012

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

The order denied tenant's motion to vacate a default final judgment and to restore the matter to the calendar in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this nonpayment summary proceeding, tenant appeals from an order denying her motion to vacate a default final judgment awarding landlord possession and the sum of $3,352, and to restore the matter to the calendar.

The affidavit of service of the petition and notice of petition states that tenant was served by personal delivery. The process server's affidavit constitutes prima facie proof of service (see City of New York v Miller, 72 AD3d 726 [2010]), and tenant's conclusory claim that the "court lacks personal jurisdiction because the Notice of Petition and Petition were not served properly" was insufficient to rebut the presumption of proper service established by the affidavit. In view of the foregoing, and as tenant failed to show an adequate excuse for her default (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), her motion to vacate the default final judgment was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: June 11, 2012

20120611

© 1992-2012 VersusLaw Inc.



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