Perilla v. Carchi

100 A.D.3d 429, 952 N.Y.S.2d 891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 2012
• Status: Published

Opinion

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 eight 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 de 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]). Concur — Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ.