| Cavalry Portfolio Servs., LLC v Reisman |
| 2008 NY Slip Op 07605 [55 AD3d 524] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Cavalry Portfolio Services, LLC, Respondent, v Faigy Reisman,Appellant. |
—[*1] Thomas Law Offices, PLLC, Hawthorne, N.Y. (Anne M. Thomas of counsel), forrespondent.
In an action to recover on an account stated, the defendant appeals from an order of the SupremeCourt, Rockland County (Sherwood, J.), dated October 19, 2007, which denied her motion, inter alia,pursuant to CPLR 5015 (a) (1) to vacate a clerk's judgment of the same court entered July 29, 2005,in favor of the plaintiff and against her in the principal sum of $20,610.84, upon her failure to appear oranswer the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the defendant'spro se motion which was pursuant to CPLR 5015 (a) (1) to vacate a clerk's judgment entered upon herdefault in appearing or answering the complaint since she failed to proffer a reasonable excuse for herdefault (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).The affidavit of service constituted prima facie evidence that the defendant was validly served pursuantto CPLR 308 (2) (see Wieck v Halpern, 255 AD2d 438 [1998]). The allegations of thedefendant and her husband were insufficient to refute the contents of the affidavit of service, and failedto raise an issue of fact requiring a hearing (see NYCTL 1997-1 Trust v Nillas, 288 AD2d 279[2001]; Wieck v Halpern, 255 AD2d 438 [1998]; Remington Invs. v Seiden, 240AD2d 647 [1997]).
The Supreme Court providently exercised its discretion in denying that branch of the [*2]defendant's pro se motion which was pursuant to CPLR 317 since thedefendant received notice of the summons in time to defend the action (see e.g. Taieb v HiltonHotels Corp., 60 NY2d 725 [1983]; Franklin v 172 Aububon Corp., 32 AD3d 454 [2006]; Brockingtonv Brookfield Dev. Corp., 308 AD2d 498 [2003]). The affidavit of service attesting that thesummons and complaint were mailed to the defendant's correct residence address created apresumption of proper mailing and of receipt (see Engel v Lichterman, 62 NY2d 943, 944-945[1984], affg 95 AD2d 536, 538 [1983]). The defendant's allegations that she did notpersonally receive notice of the summons in time to defend the action did not overcome thepresumption of proper mailing (see De La Barrera v Handler, 290 AD2d 476, 477 [2002];Udell v Alcamo Supply & Contr. Corp., 275 AD2d 453 [2000]; Facey v Heyward,244 AD2d 452 [1997]). Skelos, J.P., Ritter, Dillon, Carni and Leventhal, JJ., concur.