New York State Higher Education Services Corp. v. Ayanru

249 A.D.2d 701, 670 N.Y.S.2d 371, 1998 N.Y. App. Div. LEXIS 4124

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1998
• Status: Published

Opinion

—White, J.

Appeal from an order of the Supreme Court (Kahn, J.), entered March 20, 1996 in Albany County, which, upon reargument, adhered to its prior decision denying defendant’s motion to vacate a default judgment entered against him.

We affirm Supreme Court’s denial of defendant’s motion to vacate a default judgment entered against him on August 6, 1990. Defendant sought relief under CPLR 5015 (a) (4), alleging that “plaintiff filed false affidavits of service of some summons/complaint upon me”. In opposition, plaintiff filed a proof of service showing that it effectuated service upon defendant under CPLR 308 (4). In light of this prima facie evidence of proper service, Supreme Court properly denied defendant’s motion without a hearing since his conclusory denial of service was insufficient to raise an issue of fact (see, Manhattan Sav. Bank v Kohen, 231 AD2d 499, lv denied 91 NY2d 802; Sando Realty Corp. v Aris, 209 AD2d 682; compare, New York State Higher Educ. Servs. Corp. v Palmeri, 167 AD2d 797).

Cardona, P. J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, with costs.