Portfolio Recovery Assoc., L.L.C. v Rohan

[*1] Portfolio Recovery Assoc., L.L.C. v Rohan 2009 NY Slip Op 52065(U) [25 Misc 3d 127(A)] Decided on October 6, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2008-1813 K C.

Portfolio Recovery Associates, L.L.C., Respondent,

against

Kathleen Rohan, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered July 10, 2008. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

In this action to recover for breach of a credit card agreement and on an account stated, a default judgment was entered on October 3, 2006 upon defendant's failure to appear. By order to show cause dated June 27, 2008, defendant moved to vacate the default judgment, asserting, in her supporting affidavit, that she had not been served with a summons and complaint and that she never had an "MBNA Bank Card." By order entered July 10, 2008, the Civil Court denied the motion. On appeal, defendant contends that her motion to vacate the default judgment should have been granted because of lack of service.

Defendant's bald denial that she was not served was insufficient to rebut the presumption of proper service raised by the affidavit of service (see CPLR 5015; Carrenard v Mass, 11 AD3d 501 [2004]; Capital One Bank v Lundy, 16 Misc 3d 134[A], 2007 NY Slip Op 51512[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, even if defendant's motion is treated as one made pursuant to CPLR 317, she failed to demonstrate that she did not personally receive notice of the summons in time to defend the action (see Carrenard, 11 AD3d 501).

In view of the foregoing, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). [*2]Accordingly, the order denying defendant's motion to vacate the default judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: October 06, 2009