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Unifund Ccr Partners, Respondent v. Kalmen Balisok

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


May 6, 2013

UNIFUND CCR PARTNERS, RESPONDENT,
v.
KALMEN BALISOK, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 12, 2011.

Unifund CCR Partners v Balisok

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 6, 2013

PRESENT: ALIOTTA, J.P., PESCE 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 the principal sum of $4,197.98 for, among other things, breach of a credit card agreement. After a default judgment had been entered, defendant moved to vacate the default judgment, alleging that he had not been served. The Civil Court denied defendant's motion.

The affidavit by the process server, which set forth that there had been "nail and mail" service of the summons and complaint following three attempts at personal service, constitutes prima facie evidence of proper service (see Roberts v Anka, 45 AD3d 752 [2007]). Defendant's conclusory allegation that he was not served was insufficient to rebut the presumption of proper service (see Anderson v GHI Auto. Serv., Inc., 45 AD3d 512 [2007]). Nor was defendant entitled to relief from the default judgment pursuant to CPLR 5015 (a) (1) or CPLR 317, since his conclusory allegation that the debt was not his was insufficient to establish a meritorious defense to the action (see Eugene Di Lorenzo v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; U.S. Equities Corp. v Morselli, 36 Misc 3d 146[A], 2012 NY Slip Op 51627[U] [App Tem, 9th & 10th Jud Dists 2012]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur. Decision Date: May 06, 2013

20130506

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