| State of New York v Williams |
| 2010 NY Slip Op 04483 [73 AD3d 1401] |
| May 27, 2010 |
| Appellate Division, Third Department |
| State of New York, Respondent, v Christine S. Williams, asExecutor of William H. Schacht, Deceased, et al., Defendants, and R.J. Guerrera, Inc., Appellant.(And Third-Party and Fourth-Party Actions.) |
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Malone Jr., J. Appeals (1) from an order of the Supreme Court (Platkin, J.), entered July 2,2008 in Albany County, which, among other things, upon renewal, granted plaintiff's motion fora default judgment against defendant R.J. Guerrera, Inc., and (2) from the judgment enteredthereon.
In 1997, plaintiff discovered a petroleum discharge on the property of a service station towhich defendant R.J. Guerrera, Inc. (hereinafter defendant) delivered fuel for more than adecade. In 2004, plaintiff commenced this Navigation Law article 12 action against defendant[*2]and other potential dischargers.[FN1]As is relevant here,[FN2]in June 2005, plaintiff obtained a default judgment against defendant by filing an applicationwith the County Clerk pursuant to CPLR 3215 (a). Although Supreme Court denied defendant'ssubsequent motion to vacate the default, on appeal, this Court determined that plaintiff had notstated facts constituting the claim in its application for a default judgment and thereby vacatedthe judgment, without prejudice to plaintiff renewing its application (44 AD3d 1149 [2007]).Plaintiff promptly moved to renew its application for a default judgment, submitting additionalproof of facts to support its claim. Defendant opposed the motion and cross-moved to, amongother things, dismiss the complaint against it. Supreme Court granted plaintiff's motion anddenied the cross motion. Defendant appeals from the order and the judgment entered thereon.Thereafter, defendant moved for leave to renew its opposition to plaintiff's renewed motion for adefault judgment and to vacate the default judgment pursuant to CPLR 5015. Supreme Courtdenied the motion and defendant did not appeal from that order.
We agree with Supreme Court that, upon renewal, plaintiff adequately supported theapplication with sufficient "proof of the facts constituting the claim" (CPLR 3215 [f]). Contraryto defendant's contention, plaintiff was permitted to submit the affidavit of an Assistant AttorneyGeneral (see CPLR 3215 [f]), and that affidavit alleged that defendant deliveredpetroleum products to the spill site during the relevant time period. An affidavit from aDepartment of Environmental Conservation engineer, whose information was based uponpersonal knowledge of the remediation as well as review of official records of such, furtheralleged that the soil at the spill site was contaminated with petroleum and that one cause of thecontamination was overfilling of the underground storage tanks during gasoline deliveries. Athird affidavit established that the tank closure report relied upon by the engineer and theAssistant Attorney General in their affidavits was an admissible business record (seeCPLR 4518 [a]). Because these affidavits alleged sufficient "facts to enable a court to determinethat a viable cause of action exists" (Woodson v Mendon Leasing Corp., 100 NY2d 62,70-71 [2003]; see 333 Cherry LLC vNorthern Resorts, Inc., 66 AD3d 1176, 1179 [2009]), plaintiff's renewed motion for adefault judgment was properly granted.
Next, defendant contends that Supreme Court improperly denied its motion to renew itsopposition to plaintiff's renewed application for default judgment.[FN3]Defendant was required to base the renewal motion on newly discovered evidence which,although in existence at the time of the original motion, was not known to defendant, togetherwith a reasonable justification for not previously presenting such evidence (see 2 N. St. Corp. v Getty SaugertiesCorp., 68 AD3d 1392, 1396 [2009], lv denied 14 NY3d 706 [2010]; seeCPLR 2221 [e]; Tibbits v Verizon N.Y.,Inc., 40 AD3d 1300, 1302-1303 [2007]; Wahl v Grippen, 305 AD2d 707, 707[2003]). Here, [*3]defendant based its motion on depositiontestimony that it obtained through discovery that took place subsequent to the entry of SupremeCourt's order granting plaintiff's renewed application for a default judgment, as well asdeposition testimony that was available at the time of plaintiff's renewed motion for a defaultjudgment. Although defendant maintains that such testimony undermines plaintiff's proof,defendant failed to offer any justification for its failure to provide the deposition testimony thatwas previously available, as is required by statute (see CPLR 2221 [e] [3]).
Further, we agree with Supreme Court that the sufficiency of plaintiff's proof on its motionfor a default judgment—which was necessarily made prior to, and without the benefit of,discovery—should not be evaluated against the factual record as developed following thecompletion of subsequent depositions in connection with the prosecution of claims against otherpotentially responsible parties. Moreover, defendant does not contend that the new depositiontestimony renders plaintiff's proof insufficient to support the default judgment as a matter of lawbut, rather, contends that the new testimony calls into question the relative strength of plaintiff'ssubmissions. However, on its application for a default judgment, plaintiff was not required toprove its entitlement to judgment as a matter of law; it was required only to present sufficientnonhearsay facts to demonstrate the existence of a viable cause of action (see Woodson vMendon Leasing Corp., 100 NY2d at 70-71; 333 Cherry LLC v Northern Resorts,Inc., 66 AD3d at 1179), which, as decided above, plaintiff was successful in doing. Finally,as Supreme Court noted, most, if not all, of the alleged deficiencies in plaintiff's proof werediscernable on the record as it existed at the time that plaintiff made its prior application for adefault judgment, and defendant offered no justification for failing to present such facts at thattime. Accordingly, we cannot say that Supreme Court abused its discretion by denyingdefendant's motion to renew.
To the extent not specifically addressed herein, defendant's remaining contentions have beenconsidered and found to be unavailing.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order and judgment areaffirmed, without costs. [Prior Case History: 20 Misc 3d 1106(A), 2008 NY Slip Op51246(U).]
Footnote 1: Mystic Tank Lines Corporationbecame defendant's successor in interest in 2003, but has never been named as a defendant inthis action.
Footnote 2: Not at issue here is Mystic'sbankruptcy proceeding, wherein, among other things, it unsuccessfully sought relief fromplaintiff's claim.
Footnote 3: Although defendant did notappeal from the order denying this motion, this Court is authorized to address defendant's claimswith respect to such order pursuant to CPLR 5517 (b).