AMG Realty Partners, LP v Posner

[*1] AMG Realty Partners, LP v Posner 2013 NY Slip Op 52230(U) Decided on December 30, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570354/13.

AMG Realty Partners, LP, Plaintiff-Respondent, - -

against

Marshall Posner, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered January 7, 2013, which denied his motion to vacate a default judgment and dismiss the complaint.

Per Curiam.

Order (Frank P. Nervo, J.), entered January 7, 2013, affirmed, with $10 costs.

Defendant's motion to vacate the default judgment for lack of personal jurisdiction (see CPLR 5015[a][4]) was properly denied without a hearing. The process server's affidavit, which was filed before defendant made his vacatur motion, indicated that service had been made by delivery of the summons and complaint to defendant's "relative who refused [to provide his] true first name" at defendant's usual place of abode in Cliffside Park, New Jersey and by mailing to that address. This constituted prima facie evidence of proper service. Defendant's moving affidavit below, addressing only whether service was made at his (former) residence in Ridgewood, New Jersey, was clearly insufficient to dispute the veracity or content of the process server's affidavit. The additional arguments advanced by defendant challenging the sufficiency of the Cliffside Park service were improperly submitted for the first time in his reply papers and are not properly considered (see Board of Mgrs. of Foundry at Washington Park Condominium v Foundry Dev. Co., ___ AD3d ___, 2013 NY Slip Op 07705 [2013]).

To the extent that defendant's motion papers can be read as seeking to vacate the default judgment pursuant to CPLR 5015(a)(1), we note additionally that no meritorious defense was shown.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 30, 2013