The following papers numbered 1 to 4 were read on this motion:

Pro se defendant Stephanie Davis brings her motion seeking to vacate her default in answering the complaint. She also seeks to dismiss this action in its entirety. Movant has many bases for her motion. Among them are: (1) she is not on NYSCEF, so all papers must be mailed to her. She claims that plaintiff failed to mail multiple documents to her; (2) movant claims that counsel for plaintiff never filed a Notice of Appearance; (3) movant claims that plaintiff lacks standing; (4) movant claims that the action is time-barred; and (5) movant claims that the Foreclosure Abuse Prevention Act applies to this action.

In September 2024, this Court granted plaintiff's motion for a Judgment of Foreclosure and Sale, noting that it was "without opposition, despite proper service." Movant asserts that she did not oppose the motion because she did not receive notice thereof. Specifically, she claims that "John E. Brigandi, Esq., under his name as attorney and whose address is listed in New Jersey, claimed he, himself, served me, as Heir to the Estate of Annie Smith, with a copy of the Notice for Summary Judgment on June 28, 2024, herein. I did not receive such a notice and I don't believe he sent it, just like I don't believe that the non-appearing [sic], AKERMAN LPP [sic], sent me a copy of the defective notice of entry."

One of movant's criticisms of Attorney Brigandi is that he never filed a Notice of Appearance, and therefore any documents that he purported to serve on her by mail are a nullity. This is baseless. A review of NYSCEF shows that Mr. Brigandi works for a firm now known as Knuckles, Manfro, LLP (formerly known as Knuckles, Komosinski & Manfro, LLP and Knuckles, Komosinski & Elliot, LLP). In April 2021, this firm (under its previous name) was substituted in as counsel of record for plaintiff. This cannot be news to movant, as the Decisions and Orders of this Court name that firm (and Mr. Brigandi) as counsel for plaintiff. Accordingly, there is no problem with him serving any documents on movant.

Turning to the issue of whether plaintiff served movant with the motion for a Judgment of Foreclosure and Sale, plaintiff not only filed an affidavit of service showing that movant was served by mail at her correct address, but in opposition to this motion, plaintiff also submitted to the Court an image of a handwritten envelope, addressed to movant at her correct address. The date below the $8 metered postage shows that it has the same date as that on the affidavit of service, June 28, 2024.

In an attempt to create an issue of fact, movant asks "Could it be that the handwritten numeric street address could be mistaken for 486th Street instead of 48 6th Street. [sic] I don't know. I only know that I did not receive it and the Exhibit A is not evidence that I received it." Putting aside the fact that there is no 486th Street in New Rochelle, according to the U.S. Post Office website,^[FN1] the address does not appear to the Court to indicate anything other than [*2]movant's proper address, 48 6th Street.

It has long been settled that "a properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption." Kihl v. Pfeffer, 94 N.Y.2d 118, 122, (1999). See also Rizzo v. Rizzo, 176 AD3d 989, 989, 108 N.Y.S.3d 361, 362 (2d Dept. 2019) (an "affidavit of service raised a presumption that the judgment . . . was properly mailed to and received by the defendant. 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."); Flushing Sav. Bank, FSB v. Colmar Realty, LLC, 121 AD3d 1040, 1041, 994 N.Y.S.2d 311, 312 (2d Dept. 2014) ("plaintiff submitted affidavits of service which raised a presumption that the notice of sale was properly mailed and received by the appellants and their counsel. Their mere denial of receipt of the notice of sale was insufficient to rebut the presumption of proper mailing and receipt, and failed to raise an issue of fact requiring a hearing."). In this case, plaintiff did more than submit an affidavit of service. It also submitted a copy of an image of the actual envelope, with the date thereon matching the date on the affidavit of service.

The Court of Appeals has made it clear that "By statute, service is complete upon mailing." Engel by Engel v. Lichterman, 62 N.Y.2d 943, 944—45 (1984). This is true "regardless of whether or not the party for whom it is intended receives it." Smith by Smith v. Lefrak Org., Inc., 96 A.D.2d 859, 860, 465 N.Y.S.2d 777, 778, aff'd sub nom. Smith v. Lefrak Org., Inc., 60 N.Y.2d 828 (1983). Movant's arguments that she did not receive any notice of the motion for a Judgment of Foreclosure and Sale must thus fail.

Even if movant's arguments about service of the motion were correct, the Court finds that plaintiff has adequately demonstrated standing. The Second Department held that movant "failed to establish, prima facie, the plaintiff's lack of standing as a matter of law." Nothing that she asserts on this motion persuades the Court that, as the Second Department held, the Allonge was "not firmly attached to the Note." Movant merely attempts to reargue the same points again, with no new evidence to substantiate her arguments. This is inadequate to warrant vacating the Judgment of Foreclosure and Sale.

None of movant's other arguments have any merit. The Court finds that this action is not time-barred, as movant asserts, because the statute of limitations only began to run when the loan was accelerated back in 2015 (only three years prior to commencement). Nor is it barred by the Foreclosure Abuse Prevention Act, as that statute does not apply retroactively.

Accordingly, the Court denies the motion in its entirety.

The foregoing constitutes the decision and order of the Court.