LR Credit II, LLC v Oswald

[*1] LR Credit II, LLC v Oswald 2010 NY Slip Op 51469(U) [28 Misc 3d 138(A)] Decided on August 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1355 K C.

LR Credit II, LLC, Respondent,

against

Ewant Oswald, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered April 11, 2008. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action to recover the principal sum of $4,193.01 for breach of a credit card agreement. A default judgment was entered against defendant on March 9, 2007. Defendant moved to vacate the default judgment, alleging that he had not been served and that he had paid plaintiff in full. In opposition to the motion, plaintiff submitted the process server's affidavit as evidence of proper service. The Civil Court denied defendant's motion.

The affidavit of plaintiff's process server 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 were insufficient to rebut the presumption of proper service (see Anderson v GHI Auto. Serv., Inc., 45 AD3d 512 [2007]). Likewise, 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]).

In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether he sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, the order denying defendant's motion to vacate the default judgment is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: August 13, 2010