Puco v. DeFeo

Jul 29, 2002
Versions:296 A.D.2d 571
745 N.Y.S.2d 719
2002 N.Y. App. Div. LEXIS 7738

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Skelos, J.), entered November 21, 2000, which denied his motion to vacate a judgment of divorce entered October 29, 1999, upon his failure to appear or answer.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the defendant’s motion pursuant to CPLR 5015 (a) (4) to vacate the judgment of divorce entered upon his failure to appear or answer the verified complaint. The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308 (1) (see NYCTL 1997-1 Trust v Nillas, 288 AD2d 279; Wieck v Halpern, 255 AD2d 438; Green Point Sav. Bank v Clark, 253 AD2d 514). The defendant failed to submit a sworn denial of service or swear to specific facts to rebut the statements in the process server’s affidavit (see Silverman v Deutsch, 283 AD2d 478; Walkes v Benoit, 257 AD2d 508; European Am. Bank v Abramoff, 201 AD2d 611). Thus, the Supreme Court properly denied the defendant’s motion to vacate the default.

We have not considered correspondence from the Department of Correctional Services submitted on appeal which is dehors the record before the Supreme Court (see Shpak v New York City Tr. Auth., 292 AD2d 590; Penta v Related Cos., 286 AD2d 674). Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.