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Failure to Allege Specific Facts to Rebut Process Server Affidavit Required Denial of Motion to Vacate Judgment w/o Hearing

The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served.  No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit:

“Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits'”…. Since the appellant never denied the specific facts contained in the process server’s affidavit, no hearing was required… .  Bank of NY v Samuels, 2013 NY Slip Op 03958, 2nd Dept, 6-5-13

 

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UGELL SHOULD NOT HAVE BEEN DISQUALIFIED AS A CANDIDATE FOR TOWN SUPERVISOR; THE FACT THAT UGELL IS A TOWN JUSTICE IS NOT DISQUALIFYING; ELECTION FRAUD MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE, LACKING HERE (SECOND DEPT).
UNEXECUTED CONTRACT THAT COULD NOT BE COMPLETED WITHIN A LIFETIME NOT ENFORCEABLE, ATTORNEY WHO REPRESENTED THE DEFENDANT LLC SHOULD HAVE BEEN DISQUALIFIED IN THIS ACTION BROUGHT ON BEHALF OF A DECEASED MEMBER (SECOND DEPT).
CALCULATION OF ENHANCED EARNING CAPACITY STEMMING FROM A DEGREE EARNED DURING MARRIAGE IN THE CONTEXT OF ALLOCATING MARITAL PROPERTY IN A DIVORCE PROCEEDING EXPLAINED (SECOND DEPT).
THE RELEASE WAS VALID EVEN THOUGH PLAINTIFF DID NOT UNDERSTAND ENGLISH; CPLR 2101, WHICH REQUIRES DOCUMENTS IN A FOREIGN LANGUAGE WHICH ARE FILED OR SERVED BE ACCOMPANIED BY AN ENGLISH TRANSLATION, DOES NOT APPLY BECAUSE THE RELEASE WAS IN ENGLISH (SECOND DEPT).
THE NOTICE SENT TO THE BORROWERS IN 2012 WAS NOT SUFFICIENT TO ACCELERATE THE MORTGAGE DEBT; THEREFORE THE FORECLOSURE COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT). ​
FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED.

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Release Must Be Unambiguous to Allow Dismissal of Complaint Note of Issue Which States Discovery Not Complete Is a Nullity