Opinion
2021-51268
12-29-2021
U.S. Equities Corp., Plaintiff-Appellant, v. Zhong S. Tan, Defendant-Respondent.
Unpublished Opinion
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated September 10, 2019, which granted defendant's motion to vacate the default judgment.
PRESENT: Edmead, P.J., Hagler, Silvera, JJ.
PER CURIAM.
Order (Sabrina B. Kraus, J.), dated September 10, 2019, reversed, without costs, motion denied and default judgment reinstated.
Defendant's affidavit submitted approximately 13 years after entry of the default judgment failed to rebut the presumption of proper service created by the affidavit of the process server (see Perilla v Carchi, 100 A.D.3d 429, 430 [2012]). The conclusory assertion by defendant that he "did not receive a copy of the summons and complaint" was not sufficient to rebut the presumption of proper service (see id.; Washington Mut. Bank v Huggins, 140 A.D.3d 858, 859 [2016]; Grinshpun v Borokhovich, 100 A.D.3d 551, 552 [2012], lv denied 21 N.Y.3d 857 [2013]). Inasmuch as defendant's only excuse offered for his default is the meritless improper service argument, defendant has no excuse for the default and the motion to vacate should have been denied regardless of whether he has a meritorious defense (see Citibank, N.A. v K.L.P. Sportswear, Inc., 144 A.D.3d 475, 476-477 [2016]; Time Warner City Cable v Tri State Auto, 5 A.D.3d 153 [2004], lv dismissed 3 N.Y.3d 656 [2004]). In any event, defendant's conclusory allegations were insufficient to demonstrate a meritorious defense to this action to recover a credit card debt (see U.S. Equities Corp. v Tsui, 65 Misc.3d 128 [A], 2019 NY Slip Op 51531[U] [App Term, 1st Dept 2019]).