LR Credit 22, LLC v Monaghan

[*1] LR Credit 22, LLC v Monaghan 2012 NY Slip Op 52395(U) Decided on December 20, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., NICOLAI and IANNACCI, JJ
.

LR Credit 22, LLC, Respondent,Dec 20, 2012 N

against

George J. Monaghan, Appellant.

Appeal from an order of the District Court of Suffolk County, First District (Philip Goglas, J.), entered December 22, 2011. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover the principal sum of $2,042.91 for, among other things, breach of a credit card agreement, a default judgment was entered against defendant. Defendant moved to vacate the default judgment, alleging that he had not been properly served and that he did not recall having entered into a credit card agreement with Chase Bank U.S.A., N.A., which had assigned the credit card account in question [*2]to plaintiff. In opposition to the motion, plaintiff submitted the process server's affidavit as evidence of proper service. The District Court denied the motion.

The process server's affidavit attesting to the "nail and mail" service of the summons and complaint constituted prima facie evidence of proper service (see Roberts v Anka, 45 AD3d 752 [2007]). Defendant's conclusory allegations in his moving papers were insufficient to rebut the presumption of proper service (see Irwin Mtge. Corp. v Devis, 72 AD3d 743 [2010]). Additionally, defendant failed to establish that he had not received the summons and complaint in time to defend the action (see CPLR 317; Burnett v Renne, 32 AD3d 449, 450 [2006]). Defendant similarly failed to establish a reasonable excuse for his default (see CPLR 5015 [a]). In view of the foregoing, we do not reach the issue of whether defendant demonstrated a meritorious defense to the action (Burnett, 32 AD3d at 450).

Accordingly, the order is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 20, 2012