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Midland Funding LLC v Hernandez
2019 NY Slip Op 51029(U) [64 Misc 3d 129(A)]
Decided on June 24, 2019
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570057/19

Midland Funding LLC, Plaintiff-Respondent,

against

Maura Hernandez, Defendant-Appellant.


Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Carolyn Walker-Diallo, J.), entered September 12, 2018, which denied defendant's motion to vacate a default judgement and dismiss the action; and (2) an order (same court and Judge), dated December 20, 2018, which, in effect, granted defendant's motion for reargument and, upon reargument, adhered to the prior determination.

Per Curiam.

Order (Carolyn Walker-Diallo, J.), entered September 12, 2018, modified to grant defendant's motion to the extent of setting the matter down for a traverse hearing; as modified, order affirmed, without costs. Appeal from order (Carolyn Walker-Diallo, J.), dated December 20, 2018, dismissed, without costs, as academic.

The affidavit of plaintiff's process server, describing the personal service of the summons and complaint upon defendant, constituted prima facie evidence of proper service (see NYCTL 2012—A Trust v Colbert, 146 AD3d 482, 483 [2017]). Defendant's sworn affidavits, inter alia, denying that she was ever served and disputing the process server's description of her, were sufficient to rebut the presumption of proper service (see Johnson v Deas, 32 AD3d 253, 254 [2006]) and require a traverse (see NYCTL 1998—1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur


Decision Date: June 24, 2019