CAVALRY PORTFOLIO SERVICES LLC v. REISMAN (2008)

In an action to recover on an account stated, the defendant appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated October 19, 2007, which denied her motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate a clerk's judgment of the same court entered July 29, 2005, in favor of the plaintiff and against her in the principal sum of $20,610.84, upon her failure to appear or answer the complaint.

ORDERED that the order is affirmed, with costs.

 The Supreme Court providently exercised its discretion in denying that branch of the defendant's pro se motion which was pursuant to CPLR 5015(a)(1) to vacate a clerk's judgment entered upon her default in appearing or answering the complaint since she failed to proffer a reasonable excuse for her default (see Eugene DiLorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116).   The affidavit of service constituted prima facie evidence that the defendant was validly served pursuant to CPLR 308(2) (see Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599).   The allegations of the defendant and her husband were insufficient to refute the contents of the affidavit of service, and failed to raise an issue of fact requiring a hearing (see NYCTL 1997-1 Trust v. Nillas, 288 A.D.2d 279, 732 N.Y.S.2d 872;  Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599;  Remington Invs. v. Seiden, 240 A.D.2d 647, 658 N.Y.S.2d 696).

 The Supreme Court providently exercised its discretion in denying that branch of the defendant's pro se motion which was pursuant to CPLR 317 since the defendant received notice of the summons in time to defend the action (see e.g. Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 469 N.Y.S.2d 74, 456 N.E.2d 1197;  Franklin v. 172 Aububon Corp., 32 A.D.3d 454, 819 N.Y.S.2d 785;  Brockington v. Brookfield Dev. Corp., 308 A.D.2d 498, 764 N.Y.S.2d 469).   The affidavit of service attesting that the summons and complaint were mailed to the defendant's correct residence address created a presumption of proper mailing and of receipt (see Engel v. Lichterman, 62 N.Y.2d 943, 944-945, 479 N.Y.S.2d 188, 468 N.E.2d 26, affd. 95 A.D.2d 536, 538, 467 N.Y.S.2d 642).   The defendant's allegations that she did not personally receive notice of the summons in time to defend the action did not overcome the presumption of proper mailing (see De La Barrera v. Handler, 290 A.D.2d 476, 477, 736 N.Y.S.2d 249;  Udell v. Alcamo Supply & Contr. Corp., 275 A.D.2d 453, 713 N.Y.S.2d 77;  Facey v. Heyward, 244 A.D.2d 452, 664 N.Y.S.2d 119).