Opinion
2017–02930 Index No. 50408/11
10-16-2019
Lynn RIZZO, Respondent, v. Christopher RIZZO, Appellant.
DECISION & ORDER In a matrimonial action, the defendant appeals from an order of the Supreme Court, Richmond County (Hemalee J. Patel, Ct. Atty. Ref.), dated January 31, 2017. The order, insofar as appealed from, denied, without a hearing, the defendant's motion, inter alia, in effect, to direct the plaintiff to serve on him a copy of the parties' judgment of divorce with notice of entry.
ORDERED that the order is affirmed insofar as appealed from, with costs.
We agree with the Supreme Court's determination denying the defendant's motion, inter alia, in effect, to direct the plaintiff to serve on him a copy of the parties' judgment of divorce with notice of entry or, in the alternative, a hearing on service. In opposition to the motion, the plaintiff submitted an affidavit demonstrating that service of the judgment of divorce with notice of entry on the defendant had occurred. The affidavit of service raised a presumption that the judgment of divorce with notice of entry was properly mailed to and received by the defendant (see Engel v. Lichterman, 62 N.Y.2d 943, 944, 479 N.Y.S.2d 188, 468 N.E.2d 26 ; Flushing Sav. Bank, FSB v. Colmar Realty, LLC, 121 A.D.3d 1040, 1041, 994 N.Y.S.2d 311 ). The defendant's mere denial of receipt is insufficient to rebut this presumption of mailing or to raise a question of fact entitling him to a hearing (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; Flushing Sav. Bank, FSB v. Colmar Realty, LLC, 121 A.D.3d at 1041, 994 N.Y.S.2d 311 ). The defendant's remaining contentions are without merit.
CHAMBERS, J.P., MALTESE, DUFFY and CHRISTOPHER, JJ., concur.
Motion by the respondent, inter alia, to dismiss an appeal from an order of the Supreme Court, Richmond County, dated January 31, 2017, for failure to include a properly settled transcript in the record. By decision and order on motion of this Court dated December 21, 2017, that branch of the motion which is to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the branch of the motion which is to dismiss the appeal is denied.