In Engel, plaintiffs claimed they never received a copy of a conditional order of preclusion with notice of entry that defendant placed in a sealed post-paid wrapper in an official depository maintained by the United States Post Office. Strikingly similar to counsels' claim, Engel's counsel stated that although it appeared the order was mailed, his office never received it, from which he could “only surmise that this document was lost in the mail, since it was never delivered to our offices” (Engel at 944).Summary of this case from People v. Ellington
Argued June 4, 1984
Decided June 29, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Sebastian Leone, J.
John Anthony Bonina for appellants.
Jay W. Levy for respondent.
The order of the Appellate Division should be affirmed, with costs.
According to an affidavit of service by mail submitted by defendant, a copy of a conditional order of preclusion with notice of entry was placed, postpaid, in an official depository of the United States on December 12, 1979. Plaintiffs never complied with the order, and defendant moved for summary judgment dismissing the action in March 1981. Plaintiffs opposed by claiming that the conditional order had never been received. Specifically, plaintiffs' attorney averred that it "appears" that the order was mailed, but his office "never received that order," from which he could "only surmise that this document was lost in the mail, since it was never delivered to our offices."
A properly executed affidavit of service raises a presumption that a proper mailing occurred. By statute, service is complete upon mailing (CPLR 2103, subd [b], par 2). Plaintiffs' papers raise no question of fact as to whether proper service was made.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed, with costs, in a memorandum.