| Liriano v Eveready Ins. Co. |
| 2012 NY Slip Op 02466 [94 AD3d 716] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Ramon Liriano, Respondent, v Eveready InsuranceCompany, Appellant. |
—[*1] Linda T. Ziatz, P.C., Forest Hills, N.Y., for respondent.
In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of anunsatisfied judgment against the defendant's insured, the defendant appeals from an order of theSupreme Court, Queens County (Lane, J.), dated November 4, 2011, which denied its motion forsummary judgment dismissing the complaint on the ground that the plaintiff would be unable toprove at trial that service of the judgment was made upon the defendant.
Ordered that the order is affirmed, with costs.
Contrary to the defendant's contention, the Supreme Court properly determined that summaryjudgment should be denied because the affidavit of service prepared by the plaintiff'snow-deceased process server may be admitted as prima facie evidence of service in proceedingsbefore that court (see CPLR 4531; Koyenov v Twin-D Transp., Inc., 33 AD3d 967, 969 [2006]). Thedefendant may then present testimony in rebuttal, with issues of credibility to be determined bythe Supreme Court (see e.g. Capital Resources Corp. v Auguste, 266 AD2d 330 [1999];Deitsch v Fischer, 246 AD2d 623 [1998]; Gordon v Nemeroff Realty Corp., 139AD2d 492, 492-493 [1988]). The decision and order of this Court in a prior appeal in this casedoes not support a contrary conclusion (see Liriano v Eveready Ins. Co., 65 AD3d 524 [2009]).
The defendant's remaining contention was improperly advanced for the first time in its replypapers before the Supreme Court, and therefore we do not consider it (see Goldman v A&E Club Props.,LLC, 89 AD3d 681, 683 [2011]; Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]). Mastro,A.P.J., Hall, Lott and Sgroi, JJ., concur.