| Burekhovitch v Tatarchuk |
| 2012 NY Slip Op 06573 [99 AD3d 653] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Moysha Burekhovitch, Appellant, v Leonid Tatarchuk,Also Known as Leonid Borisovich, et al., Defendants, and Regina Kapralova et al.,Respondents. |
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In an action, inter alia, to set aside fraudulent conveyances pursuant to Debtor and CreditorLaw article 10, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Kings County (Spodek, J.), dated August 10, 2011, as granted those branches ofthe motion of the defendants Regina Kapralova and the Tatarchuk Irrevocable Living Trustwhich were to vacate the first through sixth and eighth decretal paragraphs of a judgment of thesame court dated February 20, 2008, entered against them upon their default in answering thecomplaint or appearing in the action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the motion of the defendants Regina Kapralova and the Tatarchuk Irrevocable LivingTrust which were to vacate the first through sixth and eighth decretal paragraphs of the judgmentdated February 20, 2008, are denied.
The Supreme Court erred in granting those branches of the motion of the defendants ReginaKapralova and the Tatarchuk Irrevocable Living Trust (hereinafter together the defendants)which were pursuant to CPLR 5015 (a) (4) to vacate the first through sixth and eighth decretalparagraphs of a judgment dated February 20, 2008, entered against them upon their default inanswering the complaint or appearing in the action. The process server's affidavit of serviceconstituted prima facie evidence of proper service upon the defendants pursuant to CPLR 308(4), and their unsubstantiated denials of receipt of the summons and complaint were insufficientto rebut that showing (see Irwin Mtge.Corp. v Devis, 72 AD3d 743 [2010]; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983[2008]; Chemical Bank v Darnley, 300 AD2d 613, 613-614 [2002]).
Further, the defendants were not entitled to vacatur pursuant to CPLR 317 since they failedto demonstrate that they did not receive actual notice of this action in time to defend. Theevidence demonstrating that copies of the summons and complaint were mailed to the defendantsat the correct residential address created a presumption of proper mailing and of receipt, and thedefendants' mere denial of receipt was insufficient to rebut that presumption (see Clover M. Barrett, P.C. v Gordon,90 AD3d 973, 973-974 [2011]; Centennial El. Indus., Inc. v Ninety-Five Madison Corp., 90 AD3d689, 690 [2011]; 393 LeffertsPartners, LLC v New York Ave. at Lefferts, LLC, 68 AD3d 976, [*2]976-977 [2009]; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525[2008]). Eng, P.J., Rivera, Florio and Roman, JJ., concur.