Chaudry Construction Corp. v. James G. Kalpakis & Associates

60 A.D.3d 544, 875 N.Y.S.2d 78

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2009
• Status: Published

Opinion

Order, Supreme Court, New York County (John E.H. Stack-house, J.), entered September 15, 2008, which denied defendant’s motion to vacate a default judgment, unanimously reversed, on the law, without costs, the motion granted, and the answer reinstated. Appeal from earlier interim order, same court and Justice, later entered September 26, 2008, which granted defendant’s motion to vacate the default to the extent of setting the matter down for a traverse hearing, unanimously dismissed, -without costs, as academic.

Even assuming the affirmations of service by plaintiff’s counsel sufficiently raised a presumption of proper mailing, defendant rebutted that presumption by showing they were mailed to an incorrect address (see Matter of Holland v New York City, 271 AD2d 609, 610 [2000]), necessitating a traverse hearing (see Northern v Hernandez, 17 AD3d 285 [2005]). Furthermore, defendant’s submissions offered factual support for a meritorious defense (see Mandell v Stein, 183 AD2d 488 [1992]).

At the traverse hearing, plaintiff failed to carry its burden of establishing proper service. Under such circumstances, the court erred in shifting that burden to defendant to disprove service. Concur — Saxe, J.P., Friedman, Sweeny, Renwick and Freedman, JJ.