Terlizzese v. Robinson's Custom Service, Inc.
| Decision Date | 10 January 2006 |
| Docket Number | 2005-02118. |
| Citation | 806 N.Y.S.2d 418,2006 NY Slip Op 00149,25 A.D.3d 547 |
| Parties | RONALD M. TERLIZZESE, Appellant, v. ROBINSON'S CUSTOM SERVICE, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The defendants submitted an affidavit of service attesting that a copy of the default judgment entered May 13, 2002, with written notice of its entry, was mailed to the plaintiff, who was pro se at that time, at his residence on July 19, 2002, thus raising a presumption of proper mailing, and of receipt (see Engel v Lichterman, 62 NY2d 943, 944-945 [1984], affg 95 AD2d 536, 538 [1983]). The plaintiff's mere denial of receipt of the default judgment did not overcome the presumption of proper mailing, and failed to raise an issue of fact requiring a hearing (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]; Engel v Lichterman, supra at 944-945; Kendall v Kelly, 283 AD2d 401 [2001]; Wieck v Halpern, 255 AD2d 438 [1998]; Facey v Heyward, 244 AD2d 452, 453 [1997]). Accordingly, the plaintiff's motion to vacate the default judgment on the ground of excusable default pursuant to CPLR 5015 (a) (1), which was made over two years after service of the judgment, was properly denied since it was untimely (see CPLR 5015 [a] [1]; Hartcorn v Hartcorn, 299 AD2d 395 [2002]; Kachar v Berlin, 296 AD2d 479 [2002]; Nahmani v Town of Ramapo, 262 AD2d 291 [1999]).
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