CHAUDRY CONSTRUCTION CORP v. JAMES KALPAKIS ASSOCIATES

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Supreme Court, Appellate Division, First Department, New York.

CHAUDRY CONSTRUCTION CORP., Plaintiff-Respondent, v. JAMES G. KALPAKIS & ASSOCIATES, Defendant-Appellant.

Decided: March 24, 2009

SAXE, J.P., FRIEDMAN, SWEENY, RENWICK, FREEDMAN, JJ. John V. Decolator, Garden City, for appellant. Andrew Lavoott Bluestone, New York, for respondent.

Order, Supreme Court, New York County (John E.H. Stackhouse, J.), entered September 15, 2008, which denied defendant's motion to vacate a default judgment, unanimously reversed, on the law, without costs, the motion granted, and the answer reinstated.   Appeal from earlier interim order, same court and Justice, later entered September 26, 2008, which granted defendant's motion to vacate the default to the extent of setting the matter down for a traverse hearing, unanimously dismissed, without costs, as academic.

 Even assuming the affirmations of service by plaintiff's counsel sufficiently raised a presumption of proper mailing, defendant rebutted that presumption by showing they were mailed to an incorrect address (see Matter of Holland v. New York City, 271 A.D.2d 609, 610, 706 N.Y.S.2d 161 [2000] ), necessitating a traverse hearing (see Northern v. Hernandez, 17 A.D.3d 285, 795 N.Y.S.2d 194 [2005] ).   Furthermore, defendant's submissions offered factual support for a meritorious defense (see Mandell v. Stein, 183 A.D.2d 488, 585 N.Y.S.2d 1015 [1992] ).

 At the traverse hearing, plaintiff failed to carry its burden of establishing proper service.   Under such circumstances, the court erred in shifting that burden to defendant to disprove service.