| Palisades Collection, LLC v Castrellon |
| 2014 NY Slip Op 50358(U) [42 Misc 3d 147(A)] |
| Decided on February 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Kings County
(Carolyn E. Wade, J.), entered June 20, 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 and answer. Defendant moved to vacate the default judgment, alleging that he had not been properly served. The Civil Court denied the motion.
The affidavit by the process server, attesting to service upon a person of "suitable age and discretion" (CPLR 308 [2]), constitutes prima facie evidence of proper service (see Goralski v Nadzan, 89 AD3d 801 [2011] University of Bridgeport v Emengo, 34 Misc 3d 145[A], 2012 NY Slip Op 50153[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Defendant's conclusory allegation of improper service was insufficient to rebut the presumption of proper service (see Irwin Mtge. Corp. v Devis, 72 AD3d 743 [2010] Roberts v Anka, 45 AD3d 752 [2007]). In addition, we find that, to the extent defendant was seeking to vacate the default judgment pursuant to CPLR 317, he failed to establish that he did not receive the summons and complaint in time to defend the action (see Stevens v Charles, 102 AD3d 763 [2013] Uniform Partners v Balisok, 39 Misc 3d 142[A], 2013 NY Slip Op 50765[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Defendant similarly failed to establish any other reasonable excuse for his default or meritorious defense to the action (see CPLR 5015 [a] [1]). We note that we have not considered the new facts which defendant improperly set forth for the first time in his reply papers (see Medugno v City of Glen Cove, 279 AD2d 510 [2001] Summit Jet Corp. v Meyers, 193 Misc 2d 480 [App Term, 9th & 10th Jud Dists 2002]).
Contrary to defendant's argument, it is well settled that a party who appears pro se
does so at his own peril and acquires no greater rights than that of any other litigant
(see Holder v Campbell, 40 Misc 3d 129[A], 2013 NY Slip Op 51105[U]
[App Term, 2d 11th & 13th Jud Dists 2013]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
[*2]
Decision Date: February 28,
2014