US National Bank Ass'n v. Melton
934 N.Y.S.2d 352
N.Y. App. Div.
2011
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US NATIONAL BANK ASSOCIATION, as Trustee, Respondent, v GLEN HARLAN MELTON, Appellant

Supreme Court, Appellate Division, Second Department, New York

[934 NYS2d 352]

US NATIONAL BANK ASSOCIATION, as Trustee, Respondent, v GLEN HARLAN MELTON, Appellant. [934 NYS2d 352]—

The Supreme Court properly denied that branch of the defendant‘s motion which was pursuant to CPLR 5015 (a) (4) to vacate the judgment. The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308 (2) (see ), and the defendant‘s unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service (). A hearing is not required where, as here, the defendant fails to swear to specific facts rebutting the statements in the process server‘s affidavit (see ; ). Furthermore, the affirmation of an attorney which is not based upon personal knowledge of the facts is of no probative or evidentiary significance (see ; ).

To the extent that the defendant moved pursuant to CPLR 5015 (a) (1) to vacate the judgment, the motion was untimely since it was not made within one year after a copy of the judgment was served upon him with notice of entry (see CPLR 5015 [a] [1]). Moreover, the defendant was not entitled to relief pursuant to CPLR 5015 (a) (1), as he failed to set forth any reasonable excuse for his default (see ). Finally, even if the defendant‘s motion were treated as one made pursuant to CPLR 317, he both failed to demonstrate that he did not receive notice of the action in time to defend and made his motion in May 2010, more than one year after a copy of the judgment was served upon him with notice of entry (see ).

The defendant‘s remaining contentions either are without merit or have been rendered academic by our determination.

Dillon, J.P., Angiolillo, Florio and Dickerson, JJ., concur.