STROBER KING BUILDING SUPPLY CENTERS INC v. MERKLEY (1999)

In an action, inter alia, to recover upon a personal guaranty, the defendant Terry Merkley appeals from a judgment of the Supreme Court, Rockland County (Bergerman, J.), entered July 2, 1998, which is in favor of the plaintiff and against him in the principal sum of $118,735.79.

ORDERED that the appeal is dismissed, with costs to the respondent.

 An appeal must be taken within 30 days after the appellant is served with a copy of the judgment appealed from and written notice of its entry (see, CPLR 5513[a] ).   The plaintiff mailed a copy of the judgment with notice of entry to the appellant's counsel on July 30, 1998.   The notice of appeal was dated September 28, 1998.  “A properly executed affidavit of service raises a presumption that a proper mailing occurred” (Engel v. Lichterman, 62 N.Y.2d 943, 944, 479 N.Y.S.2d 188, 468 N.E.2d 26).   Under CPLR 2103(b)(2), service is complete upon mailing.   The appellant failed to raise any issue regarding the validity of the affidavit of service.   The conclusory statement contained in the appellant's reply brief, that his counsel did not receive the judgment with notice of entry until September 25, 1998, is insufficient to defeat the presumption that a proper mailing occurred (cf., Heffernan v. Village of Munsey Park, 133 A.D.2d 139, 518 N.Y.S.2d 813;  see, Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596, 612 N.Y.S.2d 415).

MEMORANDUM BY THE COURT.