Opinion
October 14, 1986
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order is affirmed, with costs.
It is well established that a properly executed affidavit of service raises a presumption that proper mailing occurred (see, Engel v Lichterman, 95 A.D.2d 536, affd 62 N.Y.2d 943). The mere denial of the receipt of the conditional order of preclusion served by the respondents' attorney upon the appellant's attorney does not suffice to overcome the presumption of delivery and trigger the need for a hearing (see, Engel v Lichterman, supra; Quantum Heating Servs. v Austern, 100 A.D.2d 843).
The appellant's reliance upon Hesselbarth v Paredes ( 110 A.D.2d 818) is misplaced. Unlike Hesselbarth, there is no indication in the affidavit of service by mail at bar that the address to which the conditional order of preclusion was mailed was either incomplete or incorrect. Therefore, since the appellant has failed to raise an issue of fact with respect to the affidavit of service, Special Term properly granted the respondents' motion to strike the complaint in action No. 1 and for summary judgment in action No. 2 without conducting a traverse hearing (see, Colon v Beekman Downtown Hosp., 111 A.D.2d 841; cf. Matter of Novick v New York Commr. of Motor Vehicles, 99 A.D.2d 811; Vita v Heller, 97 A.D.2d 464). Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.