STROBER KING BUILDING SUPPLY CENTERS, INC. v. Merkley

Decision Date01 November 1999
Citation266 A.D.2d 203,697 N.Y.S.2d 319
PartiesSTROBER KING BUILDING SUPPLY CENTERS, INC., Respondent,<BR>v.<BR>TERRY R. MERKLEY, Appellant, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Bracken, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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 NY2d 943, 944). 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 AD2d 139; see, Deygoo v Eastern Abstract Corp., 204 AD2d 596).

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    ...of proper service pursuant to the CPLR and raises a presumption that a proper mailing occurred. (See, Strober King Bldg. Supply Centers, Inc. v. Merkley, 697 N.Y.S. 2d 319 [2nd Dept 1999]). A sworn affidavit alleging the particulars concerning why service is improper is required. (See, Hind......
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    ...of proper service pursuant to the CPLR and raises a presumption that a proper mailing occurred. (See, Strober King Bldg. Supply Centers, Inc. v. Merkley, 697 N.Y.S. 2d 319 [2nd Dept 1999]). By contrast, a defendant's "sworn non-conclusory denial" of service is sufficient to dispute the vera......
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