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Hugo Perilla, Etc., et al., Plaintiffs-Respondents v. Paquita Carchi

New York Supreme and/or Appellate Courts Appellate Division, First Department


November 8, 2012

HUGO PERILLA, ETC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
PAQUITA CARCHI, DEFENDANT-APPELLANT.

Perilla v Carchi

Decided on November 8, 2012

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.

Mazzarelli, J.P., Friedman, Catterson, Renwick, Freedman, JJ.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 26, 2012, which, in this personal injury action, denied defendant's motion to vacate a prior default judgment on the ground of lack of jurisdiction, unanimously affirmed, without costs.

Defendant's affidavit submitted some 8 years after the default by defendant failed to rebut the presumption of proper service created by the affidavit of service submitted by plaintiffs (see Wells Fargo Bank, NA v Edwards, 95 AD3d 692 [1st Dept 2012]; Matter of de Sanchez, 57 AD3d 452, 454 [1st Dept 2008]). The portion of defendant's affidavit that purported to dispute that personal service had been made upon a person of suitable age and discretion at defendant's actual place of business was conclusory and not specific enough to warrant a traverse hearing (see Sanchez, 57 AD3d at 454). Furthermore, defendant's affidavit failed to address, let alone dispute, that the pleadings had been mailed to her residence (cf. NYCTL 1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]).

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

ENTERED: NOVEMBER 8, 2012, p.m.

CLERK

20121108

© 1992-2012 VersusLaw Inc.



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