Lr Credit 15, LLC v Alford

[*1] Lr Credit 15, LLC v Alford 2015 NY Slip Op 50216(U) Decided on February 24, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2013-1314 K C

LR Credit 15, LLC, Appellant,

against

Darryl Alford, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered April 25, 2013. The order granted defendant's motion to vacate a default judgment and for related relief.

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

Plaintiff commenced this action to recover monies owed pursuant to an automobile loan agreement. A default judgment was subsequently entered against defendant, and defendant's wages were garnished. Defendant thereafter moved to vacate the default judgment and dismiss the complaint for lack of personal jurisdiction pursuant to CPLR 5015 (a) (4), or, in the alternative, to vacate the judgment pursuant to CPLR 5015 (a) (1), restore the matter to the trial calendar and deem his answer timely filed. The Civil Court, finding a lack of proper service, set aside the default judgment, vacated all liens, restraining notices and income executions, and deemed defendant's proposed answer "accepted and filed nunc pro tunc." Plaintiff appeals.

The process server's sworn affidavit of service constitutes prima facie evidence of proper service (see Wachovia Bank, N.A. v Carcano, 106 AD3d 726 [2013]). As defendant's conclusory allegations in his moving papers were insufficient to rebut the presumption of proper service (see Anderson v GHI Auto. Serv. Inc., 45 AD3d 512 [2007]), so much of his motion as sought relief pursuant to CPLR 5015 (a) (4) should have been denied. Additionally, defendant failed to establish that he had not received the summons and complaint in time to defend the action (see CPLR 317; Burnette v Renne, 32 AD3d 449 [2006]). We note that defendant's unsworn statements made at oral argument lacked probative value and should not have been considered by the Civil Court (see ST Owner LP v Adams, 27 Misc 3d 139[A], 2010 NY Slip Op 50935[U] [App Term, 1st Dept 2010]). Nor was defendant entitled to relief from the default judgment pursuant to CPLR 5015 (a) (1), since his conclusory assertion that he did not owe any money was insufficient to establish a meritorious defense to the action (see Eugene Di Lorenzo v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]).

Accordingly, the order is reversed, defendant's motion is denied, and the default judgment is reinstated.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: February 24, 2015