Monday, June 14, 2010

Bank of New York v. Bestbuydigital, Inc.

By:   Kate Cavallaro

Defendant moves to vacate default due to excusable default/meritorious defense, lack of jurisdiction and meritorious defense and failure to receive notice in time to defend. The Court in this matter denied all motions and all stays were vacated and lifted. Additionally the defendant alleged that proof of service was not filed as required by CPLR § 308(2), but offered no proof in support of this contention. Defendant relied solely on his failure to receive process in order to argue his excusable default. The Court cites Maldonado v. County of Suffolk, 229 AD 2d 376 (2d Dept. 1996), stating that “an affidavit of service by a process server which specified the papers served, the person who was served, and the date, time, address and sets forth facts showing that service was made by an authorized person, and in an authorized manner, constituted prima facie evidence of proper service.” Further, the Court notes that “a conclusory denial of receipt … is insufficient to raise an issue of fact which would entitle defendant to a traverse hearing.” The Court states that the defendant did not meet his burden of showing a meritorious defense—i.e. some minimal showing of merit. Had the defendant offered any additional showing of proof or supplied his argument in the form of an affidavit, a sworn statement, then perhaps the Defendant would have rebutted the presumption created by the process server’s affidavit of service. Due to defendant’s failure to meet his burden of proof and his failure to supply any evidence beyond a conclusory denial, the Court denied defendant’s motion to vacate the foreclosure judgment and vacated all stays.

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