Order: Department Stores National Bank v. Wendy Frankel

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                                a        pri                      KND                                siz                                     362/2011
                    KU                            OUN                      0S
NYSCEF       BOC.        NO.   9                                      RECEIVED         NYSCEF:         08/21/2012


         SUPREME COURT OF THE STATE OF NEW YORK
         COUNTY OF ROCKLAND
         —                                                            x
         DEPARTMENT STORES NATIONAL BANK,

                                           Plaintiff(s),
                                                                                DECISION & ORDER
                                      -against-                                 Index No. 034362/2011

         WENDY FRANKEL,

                                           Defendant(s).
         Hon. Thomas E. Walsh, Il, A.J.S.C.
                    The following papers numbered 1-7 read on this motion by plaintiff pursuant to CPLR
         §3212 for an Order granting it summary judgment against the defendant, together with such other
         and further relief as to the Court may seem just and proper:

                           Notice of Motion/Affidavit (Christiansen)/A ffirmation (Tiemey)
                                   /Exhibits (A-D)-1-4
                           Affidavit in Opposition (Frankel)-5
                           Reply Affirmation (Tierney)-6
                           Affidavit of Service (Rich)-7

                    The defendant's answer does not allege an affirmative defense of lack of in personam
         jurisdiction or improper service of the summons & complaint nor do the papers otherwise put
         service and jurisdiction into issue except in the defendant’s conclusory affidavit in opposition to
         this motion. The affidavit of service of the summons & complaint executed by George Rich
         reflects that he served the summons & complaint on the defendant by personally delivering them
         to her at the same address as defendant asserts is her residence in her affirmation of service dated
         July 5, 2012.
                  Mere denials of receipt ofa summons & complaint are insufficient to rebut the
         presumption of proper service created by a properly-executed affidavit of service [De La Barrera
         v. Handler, 290 A.D.2d 476 (2" Dept:, 2002)].
                 The defendant’s conclusory opposition to the motion fails to set forth any factual
         assertions that would preclude summary judgment and require a trial of this action.
                 The proponent ofa summary judgment motion must make a prima facie showing of
         entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any
         material issues of fact from the case and to warrant a court to direct judgment in its favor, as a
         matter of law [[CPLR 3212(b); Giuffrida v, Citibank Corp., et al, 100 NY2d 72 (2003), citing
         Alvarez v. Prospect Hosp., 68 NY 2d 320 (1986); and Zuckerman v. City of New York, 49 NY2d
         557 (1980)]. Once a proponent of a summary judgment motion shows its entitlement to
         judgment as a matter of law, the burden shifis to the party opposing the motion to produce
         evidentiary proof, in admissible form, demonstrating material questions of fact requiring a trial
for resolution [Gonzalez v.   98 Mag Leasing Corp., 95 NY2d 124 (2000), citing Alvarez, supra,
and Winegrad v. New York      University Med. Center, 64 NY2d 851 (1985)]. Mere conclusions or
unsubstantiated allegations   unsupported by competent evidence are insufficient to raise a triable
issue [Gilbert Frank Corp.     V. Federal Ins. Co., 70 NY2d 966 (1988) and Zuckerman v. City of
New York, 49 NY2d 557 (1980)]
       ‘The Court finds that defendant’s argument concerning the manner and timing of service
of this motion to be without merit.
       Based upon the foregoing plaintiff’s motion is granted and plaintiff shall have summary
judgment against the defendant in the amount stated in the motion.
        Plaintiffis directed to Settle Judgment on Notice within thirty (30) days of the date
hereof.

Dated: New Cj    , New York
       ‘Angus f, 2012
                                                           Thomas     . Walsh II, A.J.S.C.
To:
Forster & Garbus, LLP
Wendy Frankel, Pro se