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FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023
File No.: 1281-N00987
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----__________________----_______-----___________________________Ç
TD BANK, N.A.,
Index No. 534988/2022
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION TO MOTION
912 KYS MEDICAL INC and TO VACATE DEFAULT
DOVID NEIMAN, JUDGMENT
Defendants.
--______________________________________--________________________Ç
TERESA SADUTTO-CARLEY, an attorney duly admitted to practice law in the courts
of the State of New York, affirms the following under penalties of perjury:
1. I am a Partner with the firm of Platzer, Swergold, Goldberg, Katz & Jaslow, LLP
Plaintiff, the attorneys for the plaintiff, TD BANK, N.A. ("Plaintiff"), and am fully familiar with
the facts and circumstances herein by virtue of the records and documents kept in the legal file
maintained by this office.
2. I certify that to the best of my knowledge or information and belief, formed after
an inquiry reasonable under the circumstances, the contentions made herein are not frivolous as
defined in subsection (c) of §130-1 of the New York Court Rules.
3. This Affirmation is submitted along with the accompanying Plaintiff's
Defendants'
Memorandum of Law in Opposition to the Motion to Vacate (the "Plaintiff's Memo
"Motion")¹
of Law") in support of Plaintiff's opposition (the "Opposition") to the motion (the of
1 Cause and
The Motion consists of the following (i) Affidavit of Dovid Neiman in Support of his Order to Show
Vacate the Default Judgment(the "Neiman Affidavit"); (ii) Attorney Affirmation in Support of OTSC Vacating
Defendants'
Default Judgment and Request Traverse Hearing (the "Levenson Affirmation"); (iii) Memorandum of
Law in Support of Vacating the Default Judgment, to Request a Traverse Hearing, for Leave to File an Answer out
"Defendants'
of time if required (the Memo of Law")
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912 KYS MEDICAL INC (the "Borrower") and DOVID NEIMAN (the "Guarantor"), by Order
to Show Cause, to vacate the judgment dated and filed on March 1, 2023 [NYSCEF Docket No.
16] (the "Judgment").
4. For the reasons set forth below, the Motion should be denied in its entirety.
PROCEDURAL HISTORY
5. Plaintiff commenced this action (the "Action") by filing the Summons and Verified
Complaint and purchasing Index No. 534988/2022 on December 1, 2022 (the "Verified
"A"
Complaint")2. Annexed hereto as Exhibit is a true and copy of the Complaint.
6. On December 17, 2022, the Guarantor was served with the Complaint through
Smith" "brother"
service upon "John who identified himself as the of the Guarantor, a person of
suitable age and discretion pursuant to New York Civil Practice Law & Rules (the "CPLR") §
308(2), who acknowledged that the Guarantor lived at 11 Andrew Drive, Monsey, New York
"B"
10952. Annexed hereto as Exhibit is a true and copy of the Affidavit of Service confirming
service on the Guarantor (the "Guarantor Affidavit of Service") [NYSCEF Doc. No. 7].
Moreover, on December 20, 2022, the process server deposited in the United States mails a true
copy of the Verified Complaint properly enclosed and sealed in a post-paid wrapper addressed to
the Guarantor at 11 Andrew Drive, Monsey, New York 10952. See Exhibit "B".
7. On December 22, 2022, my office mailed an additional copy of the Complaint to
the Guarantor at his residence, 11 Andrew Drive, Monsey, New York 10952, pursuant to CPLR
"C"
3215. Annexed hereto as Exhibit is a true and copy of the Affidavit of Service confirming a
2 in the Veirifed
Capitalized terms not otherwise defined herein shall have the same meaning ascribed to them
Complaint.
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second mailing to the Guarantor (the "Guarantor Second Affidavit of Service") [NYSCEF Doc.
No. 13].
8. On December 22, 2022, the Borrower was served with the Verified Complaint
through service upon the Secretary of State of New York as authorized under CPLR § 311 and
New York Business Corporation Law ("NYBCL") § 306 (the "Borrower Affidavit of Service")
"D"
[NYSCEF Doc. No. 9]. Annexed hereto as Exhibit is a true and copy of the Borrower
Affidavit of Service.
9. On January 4, 2023, my office mailed an additional copy ofthe Verified Complaint
"E"
to the Borrower (the "Borrower Second Affidavit of Service"). Annexed hereto as Exhibit
is a true and complete copy of the Borrower Second Affidavit of Service.
10. Thereafter, Defendants failed to answer or otherwise appear in this Action.
11. On or about March 1, 2023, the Plaintiff filed its proposed Statement for Judgment
Defendants'
as a result of failure to Answer or otherwise appear in this Action.
12. The Judgment was entered in favor of Plaintiff and against the Defendants on
"F"
March 3, 2023 by the Clerk of the Court. Annexed hereto as Exhibit is a true and complete
copy of the Judgment.
13. The Notice of Entry of the Judgment was filed with the Court on March 16, 2023
[NYSCEF Doc. No. 15] and was mailed to the Borrower at 1820 Avenue M, Brooklyn, New York
11230, its last known place of business, and to the Guarantor at 11 Andrew Drive, Monsey, New
"G"
York 10952, his last known place of residence. Annexed hereto as Exhibit is a true and
complete copy of the Notice of Entry.
14. The Defendants filed their Order to Show Cause and Motion on May 19, 2023 and
the Order to Show Cause was signed by the Honorable Peter P. Sweeney on June 13, 2023.
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PRELIMINARY STATEMENT
15. The central theme of the Motion is the allegation that the Guarantor was not served
with the Complaint. The Defendants further allege that they somehow have a meritorious defense
to this Action. Both allegations defy credibility and warrant the denial of the Motion in its entirety.
VACATUR OF THE JUDGMENT IS NOT WARRANTED
16. It is well settled under New York case law that a defendant seeking to vacate a
default under CPLR Rule 5015(a) must "demonstrate a reasonable excuse for its delay in appearing
and answering the complaint and a meritorious defense to the action. Eugene Di Lorenzo, Inc. v.
A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138 (1986). Similarly, in order to vacate a default
pursuant to CPLR Rule 317, a defendant must show he or she did not receive actual notice of the
process in time to defend the Action and show a meritorious defense. Aloi v. Firebird Freight
service Corporation, 251 A.D.2d 608, 609 (2d Dep't 1998; Peacock v. Kalikow, 239 A.D. 2d 188,
189 (1st Dep't 1997).
A. Borrower has failed to satisfy the requirements of CPLR Rule 5015(a) and CPLR
Rule 317 to warrant the vacatur of the Judgment
i. Borrower has failed to set forth a reasonable excuse for its failure to appear
in the Action
17. While the Borrower is a movant in the within Motion, the Defendants have not
asserted any facts or allegations of improper service on the Borrower. Accordingly, the
Borrower has failed to set forth a reasonable excuse for its failure to appear in this Action.
18. CPLR Section 311 provides, in pertinent part, as follows:
§ 311. Personal service upon a corporation or governmental subdivision shall be
made by delivering the summons as follows:
1. upon any domestic or foreign corporation, to an officer, director,
managing or general agent, or cashier or assistant cashier or to any other
agent authorized by appointment or by law to receive service. A
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business corporation may also be served pursuant to section three
hundred six or three hundred seven of the business corporation law ...
See, CPLR § 311
19. Section 306 of the New York Business Corporation Law, in pertinent part,
provides:
§ 306. Service of Process.
(a) Service of process on a registered agent may be in the manner
prescribed by law for the service of a summons, as fi the registered
agent was a defendant.
(b) (1) Service of process on the secretary of state as agent of a domestic
corporation or authorized foreign corporation shall be made by
personally delivering to and leaving with the secretary of state or a
deputy, or with any person authorized by the secretary of state to
receive such service, at the office of the department of state in the
city of Albany ...
See, NY BSC § 306.
20. New York courts have consistently held that an affidavit of service is prima facie
proof of proper service. See, Sando Realty v. Aris, 209 A.D.2d 682 (2d Dep't 1994).
21. As set forth above, on December 22, 2022, service was effected on the Borrower
pursuant to service of the Verified Complaint upon the Secretary of State of New York as
authorized under CPLR § 311 and NY BSC § 306. The Borrower Affidavit of Service evidences
same. See Exhibit "D".
22. Here, an independent and licensed process server delivered the Verified
Complaint to Borrower via the Secretary of State. As the Secretary of State, by law, is the
designated agent for Borrower, the Secretary of State mailed the Complaint to the Borrower at
the address on file. See, NY BSC § 306.
23. Thereafter, Plaintiff sent a second copy of the Complaint to Borrower. See
Exhibit "E".
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24. As set forth above, while the Borrower is a movant in the Motion, the Borrower
fails to identify how it was improperly served. Based on the foregoing, the Borrower was
properly served and vacatur of the Judgment with respect to the Borrower is not warranted.
ii. The Borrower has also failed to establish a potential meritorious defense
to the Action to warrant vacatur of the Judgment
25. Moreover, the Borrower has failed to set forth a potentially meritorious defense to
the Plaintiff's claims in the Action to warrant a vacatur of the Judgment against it.
26. Just as the Borrower failed to provide this Court with any evidence to support its
contention that service upon it was improper, the Borrower has failed to set forth a potential
meritorious defense to the Action. The Defendants simply assert, "Additionally, as a meretricious
Plaintiff does not attach any invoices to suggest that Defendant owes the debt or when he exactly
defaulted on his payments. Therefore, Defendant provides excusable neglect and a meretricious
case." Defendants'
defense in this See Motion, Memo of Law, Page 8. This alleged defense is
insufficient to warrant the vacatur of the Judgment.
27. This is a simple collection action for non-payment of a loan. The facts are simple
and uncontroverted: The Borrower executed the Note and Loan Agreement evidencing the
commercial Loan extended by the Plaintiff to the Borrower in the principal amount of up to
"A" "B"
$100,000.00 (See Exhibit "A", Complaint, Paragraph 4 and Exhibits and thereto),
which Loan was personally guaranteed by the Guarantor pursuant to his duly executed
"C"
Guaranty (See Exhibit "A", Complaint, Paragraph 9 and Exhibit thereto). The Borrower
failed to pay the outstanding obligation due and owing on June 6, 2022 and continued thereafter
(See Exhibit "A", Complaint, Paragraph 13.) Pursuant to a payment default, the Plaintiff
made due demand upon the Defendants to pay the outstanding amounts due under the Loan
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Documents but the Defendants have failed and refused to pay same to date (See Exhibit "A",
"E"
Complaint, Paragraphs 14 and 15 and Exhibit thereto).
28. As more fully set forth in the Plaintiff's Memo of Law, in this Action, Plaintiff
submitted its sworn Verified Complaint, which set forth the outstanding amount of the
indebtedness due and owing by Defendants and constituted sufficient evidence under CPLR §
3215(f) to obtain the entered default Judgment.
29. Furthermore, it is well settled that a defendant disputing amounts owed or the
defense of payment has the burden of proof and must provide evidence of the alleged payments in
question to avoid summary judgment. See, CIT Group/Factoring Mfrs. Hanover, Inc. v.
Supermarkets General Corp., 183 A.D.2d 454, 455, 583 N.Y.S.2d 422, 423 (1st Dep't 1992)
(explaining that "[u]nder CPLR 3018(b), alleged payment of an indebtedness must be set forth as
it"
an affirmative defense, and the burden is thus on the defendant to plead and prove and noting
that "[t]here is no merit to defendant's contention that plaintiff somehow bore the burden of proving
nonpayment."); BPD Intl. Bank v. Petitto, 15 Misc. 3d 1147(A), 1147A, 841 N.Y.S.2d 825, 825
(N.Y. Civ. Ct. 2007) ("Defendant has failed to come forward with any evidence [of payment
dispute] in opposition to the motion and as such plaintiff is entitled to summary judgment.").
30. Defendants have failed to offer any evidence contradicting the outstanding
obligations due and owing to Plaintiff.
31. Other than a one line self serving unsubstantiated statement, the Borrower has failed
to provide this Court with any evidentiary support of its meritorious defense to this Action.
32. Accordingly, the Borrower has failed to provide this Court with a reasonable
excuse for its failure to appear in this Action and has failed to assert any meritorious defense to
the claims in this Action. The denial of the Motion is warranted.
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B. Guarantor has failed to satisfy the requirements of CPLR Rule 5015(a) and CPLR
Rule 317 to warrant the vacatur of the Judgment
i. Guarantor has failed to set forth a reasonable excuse for his failure to appear
in the Action
33. Similarly, the Guarantor has failed to assert a reasonable excuse for his failure to
appear in this Action.
34. CPLR § 308(2) provides, in pertinent part, that personal service upon a natural
person may be made "by delivering the summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or usual place of abode of the person to
served."
be See, CPLR § 308(2).
35. "A process server's affidavit of service constitutes prima facie evidence of proper
service."
Scarano v. Scarano, 63 A.D.3d 716, 716 (2d Dept 2009). "Although a defendant's
denial of receipt of service generally rebuts the presumption of proper service established by the
process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the
affidavit."
defendant fails to swear to specific facts to rebut the statements in the process server's
Countrywide Home Loans Serv, LP v. Albert, 78 A.D.3d 983, 984-985 (2d Dept 2010); see also
Mortgage Elec. Registration Sys., Inc. v. Losco, 125 A.D.3d 733 (2d Dept 2015).
36. Pursuant to the Affidavit of Service, the Guarantor was served with the Complaint
by serving "John Smith", the brother of the Defendant, at the Guarantors residence, 11 Andrew
Drive, Monsey, New York 10952 (the "Premises"). See Exhibit "B".
37. The Guarantor fails to swear to specific facts which contradict and/or rebut the
served"
swom Affidavit of Service. The Guarantor simply asserts that he was never "personally
with the Complaint. See Opposition, Neiman Affidavit, ¶ 7. However, service was completed by
"by delivering the summons within the state to a person of suitable age and discretion at the actual
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served,"
place of business, dwelling place
Preview
FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 File No.: 1281-N00987 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----__________________----_______-----___________________________Ç TD BANK, N.A., Index No. 534988/2022 Plaintiff, -against- AFFIRMATION IN OPPOSITION TO MOTION 912 KYS MEDICAL INC and TO VACATE DEFAULT DOVID NEIMAN, JUDGMENT Defendants. --______________________________________--________________________Ç TERESA SADUTTO-CARLEY, an attorney duly admitted to practice law in the courts of the State of New York, affirms the following under penalties of perjury: 1. I am a Partner with the firm of Platzer, Swergold, Goldberg, Katz & Jaslow, LLP Plaintiff, the attorneys for the plaintiff, TD BANK, N.A. ("Plaintiff"), and am fully familiar with the facts and circumstances herein by virtue of the records and documents kept in the legal file maintained by this office. 2. I certify that to the best of my knowledge or information and belief, formed after an inquiry reasonable under the circumstances, the contentions made herein are not frivolous as defined in subsection (c) of §130-1 of the New York Court Rules. 3. This Affirmation is submitted along with the accompanying Plaintiff's Defendants' Memorandum of Law in Opposition to the Motion to Vacate (the "Plaintiff's Memo "Motion")¹ of Law") in support of Plaintiff's opposition (the "Opposition") to the motion (the of 1 Cause and The Motion consists of the following (i) Affidavit of Dovid Neiman in Support of his Order to Show Vacate the Default Judgment(the "Neiman Affidavit"); (ii) Attorney Affirmation in Support of OTSC Vacating Defendants' Default Judgment and Request Traverse Hearing (the "Levenson Affirmation"); (iii) Memorandum of Law in Support of Vacating the Default Judgment, to Request a Traverse Hearing, for Leave to File an Answer out "Defendants' of time if required (the Memo of Law") 1 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 912 KYS MEDICAL INC (the "Borrower") and DOVID NEIMAN (the "Guarantor"), by Order to Show Cause, to vacate the judgment dated and filed on March 1, 2023 [NYSCEF Docket No. 16] (the "Judgment"). 4. For the reasons set forth below, the Motion should be denied in its entirety. PROCEDURAL HISTORY 5. Plaintiff commenced this action (the "Action") by filing the Summons and Verified Complaint and purchasing Index No. 534988/2022 on December 1, 2022 (the "Verified "A" Complaint")2. Annexed hereto as Exhibit is a true and copy of the Complaint. 6. On December 17, 2022, the Guarantor was served with the Complaint through Smith" "brother" service upon "John who identified himself as the of the Guarantor, a person of suitable age and discretion pursuant to New York Civil Practice Law & Rules (the "CPLR") § 308(2), who acknowledged that the Guarantor lived at 11 Andrew Drive, Monsey, New York "B" 10952. Annexed hereto as Exhibit is a true and copy of the Affidavit of Service confirming service on the Guarantor (the "Guarantor Affidavit of Service") [NYSCEF Doc. No. 7]. Moreover, on December 20, 2022, the process server deposited in the United States mails a true copy of the Verified Complaint properly enclosed and sealed in a post-paid wrapper addressed to the Guarantor at 11 Andrew Drive, Monsey, New York 10952. See Exhibit "B". 7. On December 22, 2022, my office mailed an additional copy of the Complaint to the Guarantor at his residence, 11 Andrew Drive, Monsey, New York 10952, pursuant to CPLR "C" 3215. Annexed hereto as Exhibit is a true and copy of the Affidavit of Service confirming a 2 in the Veirifed Capitalized terms not otherwise defined herein shall have the same meaning ascribed to them Complaint. 2 2 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 second mailing to the Guarantor (the "Guarantor Second Affidavit of Service") [NYSCEF Doc. No. 13]. 8. On December 22, 2022, the Borrower was served with the Verified Complaint through service upon the Secretary of State of New York as authorized under CPLR § 311 and New York Business Corporation Law ("NYBCL") § 306 (the "Borrower Affidavit of Service") "D" [NYSCEF Doc. No. 9]. Annexed hereto as Exhibit is a true and copy of the Borrower Affidavit of Service. 9. On January 4, 2023, my office mailed an additional copy ofthe Verified Complaint "E" to the Borrower (the "Borrower Second Affidavit of Service"). Annexed hereto as Exhibit is a true and complete copy of the Borrower Second Affidavit of Service. 10. Thereafter, Defendants failed to answer or otherwise appear in this Action. 11. On or about March 1, 2023, the Plaintiff filed its proposed Statement for Judgment Defendants' as a result of failure to Answer or otherwise appear in this Action. 12. The Judgment was entered in favor of Plaintiff and against the Defendants on "F" March 3, 2023 by the Clerk of the Court. Annexed hereto as Exhibit is a true and complete copy of the Judgment. 13. The Notice of Entry of the Judgment was filed with the Court on March 16, 2023 [NYSCEF Doc. No. 15] and was mailed to the Borrower at 1820 Avenue M, Brooklyn, New York 11230, its last known place of business, and to the Guarantor at 11 Andrew Drive, Monsey, New "G" York 10952, his last known place of residence. Annexed hereto as Exhibit is a true and complete copy of the Notice of Entry. 14. The Defendants filed their Order to Show Cause and Motion on May 19, 2023 and the Order to Show Cause was signed by the Honorable Peter P. Sweeney on June 13, 2023. 3 3 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 PRELIMINARY STATEMENT 15. The central theme of the Motion is the allegation that the Guarantor was not served with the Complaint. The Defendants further allege that they somehow have a meritorious defense to this Action. Both allegations defy credibility and warrant the denial of the Motion in its entirety. VACATUR OF THE JUDGMENT IS NOT WARRANTED 16. It is well settled under New York case law that a defendant seeking to vacate a default under CPLR Rule 5015(a) must "demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action. Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 N.Y.2d 138 (1986). Similarly, in order to vacate a default pursuant to CPLR Rule 317, a defendant must show he or she did not receive actual notice of the process in time to defend the Action and show a meritorious defense. Aloi v. Firebird Freight service Corporation, 251 A.D.2d 608, 609 (2d Dep't 1998; Peacock v. Kalikow, 239 A.D. 2d 188, 189 (1st Dep't 1997). A. Borrower has failed to satisfy the requirements of CPLR Rule 5015(a) and CPLR Rule 317 to warrant the vacatur of the Judgment i. Borrower has failed to set forth a reasonable excuse for its failure to appear in the Action 17. While the Borrower is a movant in the within Motion, the Defendants have not asserted any facts or allegations of improper service on the Borrower. Accordingly, the Borrower has failed to set forth a reasonable excuse for its failure to appear in this Action. 18. CPLR Section 311 provides, in pertinent part, as follows: § 311. Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows: 1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A 4 4 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law ... See, CPLR § 311 19. Section 306 of the New York Business Corporation Law, in pertinent part, provides: § 306. Service of Process. (a) Service of process on a registered agent may be in the manner prescribed by law for the service of a summons, as fi the registered agent was a defendant. (b) (1) Service of process on the secretary of state as agent of a domestic corporation or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany ... See, NY BSC § 306. 20. New York courts have consistently held that an affidavit of service is prima facie proof of proper service. See, Sando Realty v. Aris, 209 A.D.2d 682 (2d Dep't 1994). 21. As set forth above, on December 22, 2022, service was effected on the Borrower pursuant to service of the Verified Complaint upon the Secretary of State of New York as authorized under CPLR § 311 and NY BSC § 306. The Borrower Affidavit of Service evidences same. See Exhibit "D". 22. Here, an independent and licensed process server delivered the Verified Complaint to Borrower via the Secretary of State. As the Secretary of State, by law, is the designated agent for Borrower, the Secretary of State mailed the Complaint to the Borrower at the address on file. See, NY BSC § 306. 23. Thereafter, Plaintiff sent a second copy of the Complaint to Borrower. See Exhibit "E". 5 5 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 24. As set forth above, while the Borrower is a movant in the Motion, the Borrower fails to identify how it was improperly served. Based on the foregoing, the Borrower was properly served and vacatur of the Judgment with respect to the Borrower is not warranted. ii. The Borrower has also failed to establish a potential meritorious defense to the Action to warrant vacatur of the Judgment 25. Moreover, the Borrower has failed to set forth a potentially meritorious defense to the Plaintiff's claims in the Action to warrant a vacatur of the Judgment against it. 26. Just as the Borrower failed to provide this Court with any evidence to support its contention that service upon it was improper, the Borrower has failed to set forth a potential meritorious defense to the Action. The Defendants simply assert, "Additionally, as a meretricious Plaintiff does not attach any invoices to suggest that Defendant owes the debt or when he exactly defaulted on his payments. Therefore, Defendant provides excusable neglect and a meretricious case." Defendants' defense in this See Motion, Memo of Law, Page 8. This alleged defense is insufficient to warrant the vacatur of the Judgment. 27. This is a simple collection action for non-payment of a loan. The facts are simple and uncontroverted: The Borrower executed the Note and Loan Agreement evidencing the commercial Loan extended by the Plaintiff to the Borrower in the principal amount of up to "A" "B" $100,000.00 (See Exhibit "A", Complaint, Paragraph 4 and Exhibits and thereto), which Loan was personally guaranteed by the Guarantor pursuant to his duly executed "C" Guaranty (See Exhibit "A", Complaint, Paragraph 9 and Exhibit thereto). The Borrower failed to pay the outstanding obligation due and owing on June 6, 2022 and continued thereafter (See Exhibit "A", Complaint, Paragraph 13.) Pursuant to a payment default, the Plaintiff made due demand upon the Defendants to pay the outstanding amounts due under the Loan 6 6 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 Documents but the Defendants have failed and refused to pay same to date (See Exhibit "A", "E" Complaint, Paragraphs 14 and 15 and Exhibit thereto). 28. As more fully set forth in the Plaintiff's Memo of Law, in this Action, Plaintiff submitted its sworn Verified Complaint, which set forth the outstanding amount of the indebtedness due and owing by Defendants and constituted sufficient evidence under CPLR § 3215(f) to obtain the entered default Judgment. 29. Furthermore, it is well settled that a defendant disputing amounts owed or the defense of payment has the burden of proof and must provide evidence of the alleged payments in question to avoid summary judgment. See, CIT Group/Factoring Mfrs. Hanover, Inc. v. Supermarkets General Corp., 183 A.D.2d 454, 455, 583 N.Y.S.2d 422, 423 (1st Dep't 1992) (explaining that "[u]nder CPLR 3018(b), alleged payment of an indebtedness must be set forth as it" an affirmative defense, and the burden is thus on the defendant to plead and prove and noting that "[t]here is no merit to defendant's contention that plaintiff somehow bore the burden of proving nonpayment."); BPD Intl. Bank v. Petitto, 15 Misc. 3d 1147(A), 1147A, 841 N.Y.S.2d 825, 825 (N.Y. Civ. Ct. 2007) ("Defendant has failed to come forward with any evidence [of payment dispute] in opposition to the motion and as such plaintiff is entitled to summary judgment."). 30. Defendants have failed to offer any evidence contradicting the outstanding obligations due and owing to Plaintiff. 31. Other than a one line self serving unsubstantiated statement, the Borrower has failed to provide this Court with any evidentiary support of its meritorious defense to this Action. 32. Accordingly, the Borrower has failed to provide this Court with a reasonable excuse for its failure to appear in this Action and has failed to assert any meritorious defense to the claims in this Action. The denial of the Motion is warranted. 7 7 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 B. Guarantor has failed to satisfy the requirements of CPLR Rule 5015(a) and CPLR Rule 317 to warrant the vacatur of the Judgment i. Guarantor has failed to set forth a reasonable excuse for his failure to appear in the Action 33. Similarly, the Guarantor has failed to assert a reasonable excuse for his failure to appear in this Action. 34. CPLR § 308(2) provides, in pertinent part, that personal service upon a natural person may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to served." be See, CPLR § 308(2). 35. "A process server's affidavit of service constitutes prima facie evidence of proper service." Scarano v. Scarano, 63 A.D.3d 716, 716 (2d Dept 2009). "Although a defendant's denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the affidavit." defendant fails to swear to specific facts to rebut the statements in the process server's Countrywide Home Loans Serv, LP v. Albert, 78 A.D.3d 983, 984-985 (2d Dept 2010); see also Mortgage Elec. Registration Sys., Inc. v. Losco, 125 A.D.3d 733 (2d Dept 2015). 36. Pursuant to the Affidavit of Service, the Guarantor was served with the Complaint by serving "John Smith", the brother of the Defendant, at the Guarantors residence, 11 Andrew Drive, Monsey, New York 10952 (the "Premises"). See Exhibit "B". 37. The Guarantor fails to swear to specific facts which contradict and/or rebut the served" swom Affidavit of Service. The Guarantor simply asserts that he was never "personally with the Complaint. See Opposition, Neiman Affidavit, ¶ 7. However, service was completed by "by delivering the summons within the state to a person of suitable age and discretion at the actual 8 8 of 13 FILED: KINGS COUNTY CLERK 07/17/2023 05:14 PM INDEX NO. 534988/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2023 served," place of business, dwelling place