| Hosten v Oladapo |
| 2007 NY Slip Op 08191 [44 AD3d 1006] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Irving Hosten, Appellant, v Dele Oladapo,Respondent. |
—[*1] Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ruditzky, J.), dated March 21, 2007, which denied his motionfor leave to enter judgment against the defendant upon his default in appearing or answering andto set the matter down for an inquest on the issue of damages and deemed the defendant's answertimely filed and served.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof deeming the answer timely filed and served, and (2) by adding thewords "with leave to renew on proper papers" following the words "[p]laintiffs' motion for adefault judgment is hereby denied"; as so modified, the order is affirmed, without costs ordisbursements.
The Supreme Court properly denied the plaintiff's motion for leave to enter a defaultjudgment since he failed to submit an affidavit or a complaint verified by a party with personalknowledge of the facts constituting the claim (see CPLR 3215 [f]; Taebong Choi vJKS Dry Cleaning Equip. Corp., 15 AD3d 566 [2005]; Fiorino v Yung Poon Yung,281 AD2d 513 [2001]; Finnegan v Sheahan, 269 AD2d 491 [2000]; Henriquez vPurins, 245 AD2d 337 [1997]).
Although the plaintiff failed to demonstrate his entitlement to a default judgment, the [*2]court erred in deeming the defendant's answer timely filed andserved in the absence of a cross motion for this relief and without the necessary showing of areasonable excuse for the default and a meritorious defense (see CPLR 2215;Giovanelli v Rivera, 23 AD3d 616 [2005]; Zino v Joab Taxi, Inc., 20 AD3d 521,522 [2005]; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556, 557 [2005];Hazim v Winter, 234 AD2d 422 [1996]). Furthermore, contrary to the defendant'scontention, the plaintiff did not waive the issue of the late service of the answer and the defaultwhen he failed to reject the answer in a timely manner. Since the plaintiff notified the defendantthat he was in default and made a motion for leave to enter a default judgment prior to the serviceof an answer, the plaintiff could not be deemed to have thereafter waived the late service and thedefault (see Katz v Perl, 22 AD3d 806 [2005]). Accordingly, the Supreme Court shouldnot have deemed the answer timely filed and served. The plaintiff may renew his motion forleave to enter a default judgment on proper papers in accordance herewith. Schmidt, J.P.,Spolzino, Skelos, Lifson and McCarthy, JJ., concur.