Bank of America v. A Thru Z Motor Vehicle Services

KINGS COUNTY
Civil Practice

New York Law Journal

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Justice David Schmidt

Perlstein moved for reargument of his prior motion to vacate a default judgment entered against him. The complaint alleged Bank of America extended two business loans to A Thru Z Motor Vehicles Services (ATZ). Perlstein guaranteed the obligations of ATZ in both instances. ATZ defaulted on its obligations for each loan, and Perlstein was required to pay all amounts due, but failed to do so. The court denied two of Perlstein's prior motions to vacate his default. Perlstein previously claimed he did not recall receiving the summons and complaint. The court stated the presumption of proper service was not rebutted, finding it obtained personal jurisdiction over Perlstein. The court stated Perlstein did not and could not show he did not receive notice of the action in time to defend it, stating the mere denial of receipt of the summons and complaint was insufficient to rebut the presumption of service established by the process server's affidavit. Hence, as Perlstein's affidavit did not provide a meritorious defense to vacate the subject default, relief under CPLR 317 would be properly denied. Further, as Perlstein's offer of new facts not presented on his prior motions violated CPLR 2221(d)(2), the motion was also denied.

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