Opinion
INDEX NO.: 22030/10 SEQ. NO. 1
03-18-2011
DISTRESSED HOLDINGS, LLC, Plaintiff(s), v. RHONDA EHRLER, Defendant(s)
SHORT FORM ORDER
Present:
HON. ,
Acting Supreme Court Justice
The defendant/judgment debtor's motion, pursuant to CPLR §5403, to vacate the plaintiff/judgment creditor's November 30, 2010 $191,289.48 judgment (see defendant's Exhibit K) is determined as hereinafter provided.
On November 30, 2010, pursuant to CPLR §5402, the plaintiff/judgment creditor filed a $191,289.48 Florida judgment against the defendant/judgment debtor with the Nassau County Clerk. In accordance with §5403, on December 29, 2010 the plaintiff served the defendant with notice of the November 30, 2010 filing by first class mail to her 432 Centre Island Road, Oyster Bay residence (see defendant's Exhibit L). Finally, on January 4, 2011, pursuant to CPLR §5222-a(b), the plaintiff served an information subpoena and restraining notice upon the defendant's bank, i.e., the Bank of America. The notice included an exemption notice and exemption claim form (see plaintiff's Exhibit L).
The defendant seeks to vacate the plaintiff's judgment on the ground that, while she resides at the aforementioned address, she did not receive a copy of either the notice of filing of the foreign judgment from the plaintiff (see CPLR §5403) or the restraining notice with exemption notice and exemption claim form from the bank (see CPLR §5222-a[b][3]; plaintiff's 1/28/11 affidavit, paras. 16 & 17).
The defendant/judgment debtor's mere denial of receipt is, however, insufficient to rebut the presumption created by the plaintiff/judgment creditor's affidavit of service that a proper mailing occurred (see ATM One v Landaverde, 2 NY3d 472,478; Kihl v Pfeffer, 94 NY2d 118, 122; Encrel v Lichterman, 62 NY2d 943, 944-945).
Accordingly, the defendant/judgment debtor's motion, pursuant to CPLR §5403, to vacate the plaintiff/judgment creditor's November 30, 2010 judgment is denied.
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A.J.S.C.