U.S. Equities Corp. v Gregory

[*1] U.S. Equities Corp. v Gregory 2019 NY Slip Op 51719(U) Decided on October 24, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, J.
570232/19

U.S. Equities Corp., Plaintiff-Appellant,

against

Lloydon E. Gregory, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Bianka Perez, J.), entered May 9, 2019, which granted defendant's motion to vacate a default judgment and dismiss the action to the extent of setting the matter down for a traverse hearing.

Per Curiam.

Order (Bianka Perez, J.), entered May 9, 2019, affirmed, without costs.

Defendant's sworn affidavit disputing that he had a "co-tenant" or anyone living in the apartment matching the description of the person served, was sufficient to rebut the presumption of proper service and require a traverse hearing (see NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [2004]; Midland Funding LLC v Hernandez, 64 Misc 3d 129[A], 2019 NY Slip Op 51029[U] [App Term, 1st Dept 2019]; cf. Reliable Abstract Co., LLC v 45 John Lofts, LLC, 152 AD3d 429 [2017], lv dismissed 30 NY3d 1056 [2018]).

Contrary to plaintiff's contention, there is no competent proof in the record evidencing that defendant willingly acceded to the terms of the judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: October 24, 2019