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Flushing Natl. Bank v. Rich-Haven Motor Sales

Appellate Division of the Supreme Court of New York, Second Department
Oct 14, 1986
123 A.D.2d 663 (N.Y. App. Div. 1986)

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.


Summaries of

Flushing Natl. Bank v. Rich-Haven Motor Sales

Appellate Division of the Supreme Court of New York, Second Department
Oct 14, 1986
123 A.D.2d 663 (N.Y. App. Div. 1986)
Case details for

Flushing Natl. Bank v. Rich-Haven Motor Sales

Case Details

Full title:FLUSHING NATIONAL BANK, Appellant, v. RICH-HAVEN MOTOR SALES, INC., et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 14, 1986

Citations

123 A.D.2d 663 (N.Y. App. Div. 1986)

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