Fleet Bank v Myers

[*1] Fleet Bank v Myers 2005 NYSlipOp 50625(U) Decided on April 26, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 26, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-896 K C

Fleet Bank, Appellant,

against

Therese Myers, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Thomas, J.), entered April 15, 2004, which granted defendant's motion to vacate a default judgment.

Order unanimously reversed without costs, defendant's motion to vacate the default judgment denied and judgment reinstated.

The defendant in this case was not entitled to relief pursuant to CPLR 5015 (a) since she failed to establish that she did not receive notice of the action in time to defend. The mere allegation that she was not served with the summons and complaint in the action was insufficient to rebut the presumption of proper service pursuant to CPLR 308 (2) raised by the affidavit of service (see Carrenard v Mass, 11 AD3d 501 [2004]). [*2]
Moreover, defendant did not allege any defense to the action in her affidavit in support
of said motion. Thus, the court below improvidently exercised its discretion in granting the motion to vacate the default judgment.
Decision Date: April 26, 2005