Opinion
No. 2012–2494 KC.
2014-08-20
PALISADES COLLECTION, L.L.C., Respondent, v. Ionna JIMENEZ, Appellant.
Present: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 25, 2012. The order, insofar as appealed from, upon, in effect, renewal, adhered to a prior determination denying defendant's motion to vacate a default judgment.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant's motion to vacate the default judgment.
In this action to recover for breach of a credit card agreement, defendant moved to vacate a default judgment that had been entered against her, alleging that she had never received the summons and complaint and that she had not been served properly. After her motion was denied, defendant moved for, in effect, leave to renew, alleging that she had never lived at the address at which the summons and complaint had been served. Upon granting, in effect, leave to renew, the Civil Court adhered to its prior determination.
We find that defendant's sworn allegation that she had never lived at the address where the summons and complaint had been served was sufficient to rebut the affidavit of service and warrant a traverse hearing ( see Aurora Loan Servs., LLC v. Gaines, 104 AD3d 885 [2013]; University of Bridgeport v. Emengo, 34 Misc.3d 145[A], 2012 N.Y. Slip Op 50153[U] [App Term, 2d, 11th & 13th Jud Dists 2012] ).
Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant's motion to vacate the default judgment.