Opinion
2012-12-20
LR CREDIT 22, LLC, Respondent, Dec 20, 2012–N v. George J. MONAGHAN, Appellant.
Present: MOLIA, J.P., NICOLAI and IANNACCI, JJ.
Appeal from an order of the District Court of Suffolk County, First District (Philip Goglas, J.), entered December 22, 2011. The order denied defendant's motion to vacate a default judgment.
ORDERED that the order is affirmed, without costs.
In this action to recover the principal sum of $2,042.91 for, among other things, breach of a credit card agreement, a default judgment was entered against defendant. Defendant moved to vacate the default judgment, alleging that he had not been properly served and that he did not recall having entered into a credit card agreement with Chase Bank U.S.A., N.A., which had assigned the credit card account in question to plaintiff. In opposition to the motion, plaintiff submitted the process server's affidavit as evidence of proper service. The District Court denied the motion.
The process server's affidavit attesting to the “nail and mail” service of the summons and complaint constituted prima facie evidence of proper service ( see Roberts v. Anka, 45 AD3d 752 [2007] ). Defendant's conclusory allegations in his moving papers were insufficient to rebut the presumption of proper service ( see Irwin Mtge. Corp. v. Devis, 72 AD3d 743 [2010] ). Additionally, defendant failed to establish that he had not received the summons and complaint in time to defend the action ( seeCPLR 317; Burnett v. Renne, 32 AD3d 449, 450 [2006] ). Defendant similarly failed to establish a reasonable excuse for his default ( seeCPLR 5015[a] ). In view of the foregoing, we do not reach the issue of whether defendant demonstrated a meritorious defense to the action (Burnett, 32 AD3d at 450).
Accordingly, the order is affirmed.