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South Shore Adj Co., LLC v Laing
2014 NY Slip Op 50060(U) [42 Misc 3d 134(A)]
Decided on January 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : LaSALLE, J.P., NICOLAI and IANNACCI, JJ
2013-228 S C.

South Shore Adjustment Co., LLC, as Successor Assignee in Interest to CHASE BANK USA, N.A., Respondent,

against

Sandy Laing, Appellant.


Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), entered October 12, 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 for breach of a credit card agreement and upon an account stated, a default judgment was entered upon defendant's failure to appear or answer. In support of her motion to vacate the default judgment, defendant alleged that she had not been served properly. The District Court denied defendant's motion.

Defendant's bald assertion that she did not answer because she "did not receive, nor was [she] served any papers to respond" was insufficient to rebut the presumption of proper "nail and mail" service (see CPLR 308 [4]) created by the affidavit of service (see CPLR 5015 [a] [4] Carrenard v Mass, 11 AD3d 501 [2004] Capital One Bank v Lundy, 16 Misc 3d 134[A], 2007 NY Slip Op 51512[U] [App Term, 2d & 11th Jud Dists 2007]). Even if defendant's motion is treated as one made pursuant to CPLR 317, defendant failed to demonstrate that she "did not personally receive notice of the summons in time to defend" the action (CPLR 317; see Burekhovitch v Tatarchuk, 99 AD3d 653 [2012] Carrenard, 11 AD3d at 501). Inasmuch as defendant failed to present a reasonable excuse for her default, defendant's motion to vacate the default judgment was properly denied (CPLR 5015 [a] [1]). In view of the foregoing, we do not reach the issue of whether defendant demonstrated a meritorious defense to the action (see Levi v Levi, 46 AD3d 519 [2007] Burnette v Renne, 32 AD3d 449 [2006]).

Accordingly, the order is affirmed.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 10, 2014