Capital One Bank v Bostinto

[*1] Capital One Bank v Bostinto 2009 NY Slip Op 52375(U) [25 Misc 3d 138(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2008-1452 N C.

Capital One Bank, Appellant,

against

Denise Bostinto, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Anthony William Paradiso, J.), entered May 27, 2008. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed without costs, defendant's motion to vacate the default judgment is denied and the default judgment is reinstated.

In this action to recover for breach of a credit card agreement and upon an account stated, a default judgment was entered upon defendant's failure to appear or answer. In support of her motion to vacate the default judgment, defendant alleged that she had not received the summons and that her ex-husband had been ordered to pay her credit card debt pursuant to the judgment of divorce. The District Court found that defendant had asserted both a reasonable excuse for the default and a meritorious defense to the action, and granted defendant's motion.

Defendant failed to establish a meritorious defense to the action. Any payments due under the credit card agreement which were to be made by defendant's ex-husband pursuant to the judgment of divorce did not relieve defendant of her obligation to plaintiff to pay the credit card debt. Moreover, defendant failed to establish a reasonable excuse for defaulting in this action. Her bald assertion that she did not receive the summons 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]). Even if defendant's motion is treated as one made pursuant to CPLR 317, defendant failed to demonstrate that she did not personally receive notice of the summons in time to defend the action (see Carrenard, 11 AD3d at 501). Accordingly, the order granting defendant's motion to vacate the default judgment is reversed, the motion is denied and the default judgment is reinstated.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 2009