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COMMERCE BANK, N.A. v. EXECUTIVE SETTLEMENT SERVS. LLC

1211N.

2009 NY Slip Op 07361

COMMERCE BANK, N.A., Plaintiff-Respondent, v. EXECUTIVE SETTLEMENT SERVICES LLC, ETC., ET AL., Defendants-Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided October 15, 2009.

Attorney(s) appearing for the Case

Lerner & Kaplan, PLLC, Brooklyn (Alexander M. Kaplan of counsel),for appellants.

Zeichner Ellman & Krause LLP, New York (Nathan Schwed of counsel), for respondent.

Before: Andrias, J.P., Sweeny, Nardelli, Richter, Abdus-Salaam, JJ.

The unsworn affirmation of attorney Kaplan, a party in this action, was insufficient as a matter of law to rebut the affidavit of personal service on him (see Matter of Nazarian v Monaco Imports, 255 A.D.2d 265 [1998]; see also LaRusso v Katz, 30 A.D.3d 240, 243 [2006]), or to explain ESS's claimed non-receipt of process delivered to the Secretary of State. In any event, any discrepancies...

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