LVNV Funding, LLC v Gibson

[*1] LVNV Funding, LLC v Gibson 2014 NY Slip Op 50609(U) Decided on March 27, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ
2012-2756 W C.

LVNV Funding, LLC, Respondent,

against

Sophia Gibson, Appellant.

Appeal from an order of the City Court of White Plains, Westchester County (JoAnn Friia, J.), dated October 10, 2012. The order denied defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this action to recover the principal sum of $10,368.30 for breach of a credit card agreement, defendant appeals from an order denying her motion to vacate a default judgment entered against her.

Defendant's conclusory denial of service in her moving papers was insufficient to rebut the prima facie proof of proper service set forth in the process server's affidavit of
service (see Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]; ACT Props., LLC v Garcia, 102 AD3d 712 [2013]; Burekhovitch v Tatarchuk, 99 AD3d 653 [2012]; Irwin Mtge. Corp. v Devis, 72 AD3d 743 [2010]; LR Credit 22, LLC v Monaghan, 38 Misc 3d 129[A], 2012 NY Slip Op 52395[U] [App Term, 9th & 10th Jud Dists 2012]). Therefore, defendant failed to establish either a reasonable excuse for her default under CPLR 5015 (a) (1) or a lack of notice of the summons in time to defend under CPLR 317. In view of the foregoing, we need not determine whether defendant had a potentially meritorious defense (see Deutsche Bank Natl. Trust Co., 102 AD3d 724; ACT Props., LLC, 102 AD3d 712).

We note that the City Court properly refused to consider the new facts alleged by defendant in her reply papers (see Board of Mgrs. of Foundry at Washington Park Condominium v Foundry Dev. Co., Inc., 111 AD3d 776 [2013]; TrizecHahn, Inc. v Timbil Chiller Maintenance Corp., 92 AD3d 409 [2012]).

Accordingly, the order is affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: March 27, 2014