3890 98 LLC v. Jennifer Hiraldo, Respondent-Licensee-Appellant. (2026)

Per Curiam.

Order (Frances A. Ortiz, J.), dated May 22, 2024 affirmed, without costs.

Respondent's motion to vacate the default final judgment for lack of jurisdiction was properly denied. The affidavit of petitioner's process server constituted prima facie evidence of proper service pursuant to RPAPL § 735 (1) (see Reem Contr. v Altschul & Altschul, 117 AD3d 583, 584 [2014]), and respondent's mere conclusory denial of receipt of service was insufficient to rebut the presumption that service was proper (see Grinshpun v Borokhovich, 100 AD3d 551, 552 [2012], lv denied 21 NY3d 857 [2013]; Matter of de Sanchez, 57 AD3d 452, 454 [2008]; NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [2004]). Contrary to respondent's contention, the petition, notice of petition and affidavit of service contain no error relative to the subject apartment number.

Civil Court also providently exercised its discretion in denying respondent's CPLR 5015 (a) (1) motion to vacate her default. Inasmuch as the only excuse offered is the meritless improper service argument, respondent has no excuse for the default and the motion to vacate should have been denied regardless of whether she has a meritorious defense (see Citibank, N.A. v K.L.P. Sportswear, Inc., 144 AD3d 475, 476-477 [2016]; Time Warner City Cable v Tri State Auto, 5 AD3d 153, 153 [2004], lv dismissed 3 NY3d 656 [2004]).

In any event, respondent failed to demonstrate a meritorious defense to this proceeding. Respondent was granted a license to occupy the subject apartment (#24) as an accommodation, after her original apartment (#41) was damaged in a fire, which resulted in the issuance of a partial vacate order by the New York City Department of Buildings (DOB). The vacate order for apartment #41 was lifted on or about September 29, 2023, but respondent failed to vacate apartment #24 and resume occupancy of apartment #41. Petitioner then served a notice to quit and commenced this licensee holdover proceeding. Respondent, who does not dispute that she was a licensee of apartment #24 and that her licence was terminated, failed to raise a defense entitling her to continued occupancy.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 20, 2026