Strober King Building Supply Centers, Inc. v. Merkley

Appellate Division of the Supreme Court of New York

Strober King Building Supply Centers, Inc. v. Merkley

266 A.D.2d 203, 697 N.Y.S.2d 319, 1999 N.Y. App. Div. LEXIS 11093

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 1, 1999

StatusPublished

Cited by4 cases

This text of 266 A.D.2d 203 (Strober King Building Supply Centers, Inc. v. Merkley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Strober King Building Supply Centers, Inc. v. Merkley, 266 A.D.2d 203, 697 N.Y.S.2d 319, 1999 N.Y. App. Div. LEXIS 11093 (N.Y. Ct. App. 1999).

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Opinion

—In an action, inter alia, to recover upon a personal guaranty, the defendant Terry Merkley appeals from a judgment of the Supreme Court, Rockland County (Bergerman, J.), entered July 2, 1998, which is in favor of the plaintiff and against him in the principal sum of $118,735.79.

Ordered that the appeal is dismissed, with costs to the respondent.

An appeal must be taken within 30 days after the appellant is served with a copy of the judgment appealed from and written notice of its entry (see, CPLR 5513 [a]). The plaintiff mailed a copy of the judgment with notice of entry to the appellant’s counsel on July 30, 1998. The notice of appeal was dated September 28, 1998. “A properly executed affidavit of service raises a presumption that a proper mailing occurred” (Engel v Lichterman, 62 NY2d 943, 944). Under CPLR 2103 (b) (2), service is complete upon mailing. The appellant failed to raise any issue regarding the validity of the affidavit of service. The conclusory statement contained in the appellant’s reply brief, that his counsel did not receive the judgment with notice of entry until September 25, 1998, is insufficient to defeat the presumption that a proper mailing occurred (cf, Heffernan v Village of Munsey Park, 133 AD2d 139; see, Deygoo v Eastern Abstract Corp., 204 AD2d 596). Bracken, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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—In an action, inter alia, to recover upon a personal guaranty, the defendant Terry Merkley appeals from a judgment of the Supreme Court, Rockland County (Bergerman, J.), entered July 2, 1998, which is in favor of the plaintiff and against him in the principal sum of $118,735.79.

Ordered that the appeal is dismissed, with costs to the respondent.

An appeal must be taken within 30 days after the appellant is served with a copy of the judgment appealed from and written notice of its entry (see, CPLR 5513 [a]). The plaintiff mailed a copy of the judgment with notice of entry to the appellant’s counsel on July 30, 1998. The notice of appeal was dated September 28, 1998. “A properly executed affidavit of service raises a presumption that a proper mailing occurred” (Engel v Lichterman, 62 NY2d 943, 944). Under CPLR 2103 (b) (2), service is complete upon mailing. The appellant failed to raise any issue regarding the validity of the affidavit of service. The conclusory statement contained in the appellant’s reply brief, that his counsel did not receive the judgment with notice of entry until September 25, 1998, is insufficient to defeat the presumption that a proper mailing occurred (cf, Heffernan v Village of Munsey Park, 133 AD2d 139; see, Deygoo v Eastern Abstract Corp., 204 AD2d 596). Bracken, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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266 A.D.2d 203, 697 N.Y.S.2d 319, 1999 N.Y. App. Div. LEXIS 11093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strober-king-building-supply-centers-inc-v-merkley-nyappdiv-1999.

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