The Defendant moves for an order vacating and setting aside a judgment by default in the sum of $11,910.24, entered on October 27, 2006. The Plaintiff opposes the motion.

A defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for failing to appear in the action and a meritorious defense. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 NY2d 138, 501 NYS2d 8 (1986) Hirsch v. Blake Housing, LLC, 35 AD3d 368, 825 NYS2d 267 (2nd Dept. 2006); O'Leary v. Noutsis, 303 AD2d 664, 756 NYS2d 793 (2nd Dept. 2003) The Defendant herein claims that he has "no recollection of personally receiving the Summons and Complaint" (Parham Affidavit 1/3/07, ¶ 4) and that he "dispute[s] the charges or whatever it is the plaintiff is claiming." (Parham Affidavit 1/3/07, ¶ 7)

A process server's affidavit, as herein, alleging service pursuant to CPLR § 308(2) is prima facie evidence of proper service. Sando Realty Corp. v. Aris, 209 AD2d 682, 619 NYS2d 140 (2nd Dept.1994); 96 Pierrepont, LLC v. Mauro, 304 AD2d 631, 757 NYS2d 468 (2nd Dept. 2003); Simmons First National Bank v. Mandracchia, 248 AD2d 375, 669 NYS2d 646 (2nd Dept.1998) To overcome this proof, the Defendant must do more than simply deny receipt of the Summons and Complaint, but must set forth facts substantiating this claim. Colon v. Beekman Downtown Hospital, 111 AD2d 841, 490 NYS2d 581 (2nd Dept. 1985); Ruskin, Moscou, Evans & Faltischek, P.C. v. Beal, 212 AD2d 687, 622 NYS2d 598 (2nd Dept.1995); Wunsch v. Cerwinski, 36 AD3d 612, 828 NYS2d 157 (2nd Dept. 2007); Sime v. Ludhar, __ AD3d __, __ [*2]NYS2d __, 2007 WL 610115 (2nd Dept. 2007) This the Defendant has failed to do.

The Defendant's excuse for failing to appear herein is that he has "no recollection of personally receiving"(Parham Affidavit 1/3/07, ¶ ¶ 4, 5) the Summons and Complaint. The Defendant also avers that he does not know who "John" Parham, the person of suitable age and discretion to whom the Summons and Complaint was allegedly delivered, is. The Defendant further alleges that he did not receive a copy of the Summons and Complaint in the mail, although it is alleged that they were mailed to him twice. Notably absent from the Defendant's affidavit is a denial that the alleged service was made at an improper address, see: Commissioners of State Insurance Fund v. Nobre, Inc., 29 AD3d 511, 816 NYS2d 493 (2nd Dept. 2006); Marable v. Williams, 278 AD2d 459, 718 NYS2d 400 (2nd Dept.2000) or that there is no one at his residence who fits the description of the person of suitable age and discretion to whom the papers were allegedly delivered, see: National Recovery Systems v. Weiss, 226 AD2d 289, 641 NYS2d 296 (1st Dept. 1996); Colon v. Beekman Downtown Hospital, supra . The Defendant's mere denial of receipt of the Summons and Complaint is insufficient to rebut the presumption of proper service created by the process server's affidavit. General Motors Acceptance Corporation v. Grade A Auto Body, Inc., 21 AD3d 447, 799 NYS2d 748 (2nd Dept. 2005); Remington Investments, Inc. v. Seiden, 240 AD2d 647, 658 NYS2d 696 (2nd Dept. 1997); Koyenov v. Twin-D Transp., Inc., 33 AD3d 967, 824 NYS2d 338 (2nd Dept. 2006)

The Defendant's alleged meritorious defense is equally deficient. The Defendant simply states, in the alternative, "I do not recall ever charging items on my Sears charge account" (Parham Affidavit 1/3/07, ¶ 8); "Moreover, any charges that appear on my credit account were not authorized by me to be placed thereon"(Parham Affidavit 1/3/07, ¶ 8); and, "I have a zero balance on my credit card." (Parham Affidavit 1/3/07, ¶ 8) Absent from the Defendant's motion is any documentary evidence substantiating these conclusory claims which, by themselves, are insufficient to set forth a meritorious defense. National Recovery Systems v. Weiss, supra .; Peacock v. Kalikow, 239 AD2d 188, 658 NYS2d 7 (1st Dept. 1997)

Based upon the foregoing, whether treated as a motion pursuant to CPLR § 5015 or CPLR § 317, the Defendant's motion is denied due to his failure to set forth either a reasonable excuse for his default or a meritorious defense. Carrendard v. Mass, 11 AD3d 501, 782 NYS2d 810 (2nd Dept. 2004)

All other matters not decided herein are hereby denied

This constitutes the decision and order of this court.

Dated: Hempstead, New York

March 27, 2007

___________________________

ANDREW M. ENGEL

J.D.C.