| State Farm Ins. Co. v Fullington |
| 2015 NY Slip Op 51799(U) [49 Misc 3d 155(A)] |
| Decided on December 8, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 6, 2014. The order granted defendant's motion to vacate a default judgment.
ORDERED that the order is reversed, without costs, defendant's motion to vacate the default judgment is denied, and the default judgment is reinstated.
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 on September 26, 1996 after he had failed to appear or answer.
The affidavit of service annexed to the summons and indorsed complaint established, prima facie, that defendant was properly served pursuant to CPLR 308 (2) (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524 [2008]; 96 Pierrepont v Mauro, 304 AD2d 631 [2003]). Defendant's bare allegation that the "[p]apers [were] sent to [the] wrong address," was insufficient to rebut the presumption of proper service raised by the affidavit (see CPLR 5015 [a] [4]; Carrenard v Mass, 11 AD3d 501 [2004]).
Moreover, defendant was not entitled to relief under CPLR 317. Where service is made "other than by personal delivery," the statute permits a defendant to "defend the action within one year after he obtains knowledge of the entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense." As more than five years had elapsed between September 26, 1996, when the default judgment was entered, and March 21, 2014, when the motion to vacate the judgment was made, defendant was barred from obtaining vacatur of the default judgment against him pursuant to CPLR 317 (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512 [2007]; State of NY Higher Educ. Servs. Corp. v Upshur, 252 AD2d 333, 337 [1999]).
Accordingly, the order is reversed, defendant's motion to vacate the default judgment is denied, and the default judgment is reinstated.
Elliot, J.P., Pesce and Solomon, JJ., concur.