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Allstate Ins. Co. v Hurst
2015 NY Slip Op 50693(U) [47 Misc 3d 144(A)]
Decided on May 1, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-446 Q C

Allstate Insurance Company as Subrogee of FRANCHESKA HOLMES, Appellant,

against

Hilford A. Hurst, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 16, 2013. The order granted defendant's motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

In this subrogation action, plaintiff appeals from an order of the Civil Court which granted defendant's motion to vacate a default judgment that had been entered against him after he had failed to appear or answer.

In support of his motion, defendant asserted that he had never received a copy of the summons and complaint. In opposition to the motion, plaintiff's counsel stated that proper service had been effectuated by serving defendant at the address set forth


for defendant in the police accident report, which was the address on record with the Department of Motor Vehicles (DMV), and that defendant was therefore estopped from challenging service of process. We note, however, that the address for defendant, as set forth on the summons and on plaintiff's "notice of default mailing with copy of summons and complaint," differs from the address on file with the DMV. Moreover, the record does not contain a copy of the affidavit of service of process, which affidavit ordinarily constitutes prima facie evidence of proper service (see Scarano v Scarano, 63 AD3d 716 [2009]). Under these circumstances, plaintiff failed to rebut defendant's claim that he had never received a copy of the summons and complaint. It is noted that defendant does not seek to dismiss the complaint based on lack of personal jurisdiction but, rather, seeks to vacate the default judgment entered against him and to restore the matter to the calendar so that he may defend the action on the merits.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.


Decision Date: May 01, 2015