Opinion
01-03-2017
WELLS FARGO BANK, N.A., Plaintiff–Respondent, v. Josephine KISSI, Defendant–Appellant, The New York City Environmental Control Board, et al., Defendants.
Robert Levy, Glen Cove, for appellant. Reed Smith LLP, New York (Andrew B. Messite of counsel), for respondent.
Robert Levy, Glen Cove, for appellant.
Reed Smith LLP, New York (Andrew B. Messite of counsel), for respondent.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 30, 2015, which, inter alia, granted plaintiff's motion for a judgment of foreclosure, and denied defendant Josephine Kissi's cross motion to vacate her default, unanimously affirmed, without costs.
Defendant's conclusory, undocumented assertion in her affidavit that she had moved, when she had not notified either the post office or the lender of any change of address, was insufficient to rebut the presumption of proper service, even by nail and mail, created by the process server's affidavit (see Sharbat v. Law Offs. of Michael B. Wolk, P.C., 121 A.D.3d 426, 427, 993 N.Y.S.2d 691 [1st Dept.2014] ; U.S. Bank Natl. Assn. v. Vanvliet, 24 A.D.3d 906, 908, 805 N.Y.S.2d 459 [3d Dept.2005] ). Defendant's conclusory "incorporation by reference" of her proposed verified complaint and counterclaim, without any attempt to make a legal argument or explain her theories, was insufficient to establish a meritorious defense under CPLR 5015(a)(1). In any event, the principal claims appear to be under the Truth in Lending Act (15 U.S.C. § 1601 et
seq. ), and are time-barred (see 15 U.S.C. §§ 1640 [e], 1635[f] ).
FRIEDMAN, J.P., SWEENY, RICHTER, MANZANET–DANIELS, KAPNICK, JJ., concur.