

Wells Fargo Bank, N.A. v Kissi (2017 NY Slip Op 00006)





Wells Fargo Bank, N.A. v Kissi


2017 NY Slip Op 00006


Decided on January 3, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 3, 2017

Friedman, J.P., Sweeny, Richter, Manzanet-Daniels, Kapnick, JJ.


2593 381152/13

[*1]Wells Fargo Bank, N.A., Plaintiff-Respondent,
vJosephine Kissi, Defendant-Appellant, The New York City Environmental Control Board, et al., Defendants.


Robert Levy, Glen Cove, for appellant.
Reed Smith LLP, New York (Andrew B. Messite of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 30, 2015, which, inter alia, granted plaintiff's motion for a judgment of foreclosure, and denied defendant Josephine Kissi's cross motion to vacate her default, unanimously affirmed, without costs.
Defendant's conclusory, undocumented assertion in her affidavit that she had moved, when she had not notified either the post office or the lender of any change of address, was insufficient to rebut the presumption of proper service, even by nail and mail, created by the process server's affidavit (see Sharbat v Law Offs. of Michael B. Wolk, P.C., 121 AD3d 426, 427 [1st Dept 2014]; U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 908 [3d Dept 2005]). Defendant's conclusory "incorporation by reference" of her proposed verified complaint and counterclaim, without any attempt to make a legal argument or explain her theories, was insufficient to establish a meritorious defense under CPLR 5015(a)(1). In any event, the principal claims appear to be under the Truth in Lending Act (15 USC § 1601 et seq.), and are time-barred (see 15 USC §§ 1640[e], 1635[f]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2017
CLERK


