ACT Properties, LLC v. Garcia

102 A.D.3d 712, 957 N.Y.S.2d 884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2013
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Ana Garcia appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated August 16, 2011, which denied her motion, inter alia, to vacate a judgment of the same court dated January 13, 2011, entered upon her default in appearing and answering.

Ordered that the order is affirmed, with costs.

Contrary to the contention of the defendant Ana Garcia (hereinafter the appellant), her conclusory and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the process server’s affidavits of service (see Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2012]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2010]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984 [2010]; Scarano v Scarano, 63 AD3d 716 [2009]; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009]). Therefore, the appellant failed to establish either a reasonable excuse for her default under CPLR 5015 (a) (1) or a lack of notice of the summons in time to defend under CPLR 317.

In light of the foregoing, we need not determine whether the appellant had a potentially meritorious defense (see Jackson v Professional Transp. Corp., 81 AD3d 602, 603 [2011]; Young Chen v Ruihua Li, 67 AD3d 905, 906 [2009]).

Accordingly, the appellant’s motion to vacate the judgment was properly denied. Mastro, J.P., Lott, Roman and Cohen, JJ., concur.