| Baldwin v Mateogarcia |
| 2008 NY Slip Op 09738 [57 AD3d 594] |
| December 9, 2008 |
| Appellate Division, Second Department |
| Jesse Baldwin, Appellant, v Cristino Mateogarcia et al.,Respondents, et al., Defendant. |
—[*1] Weiner Millo & Morgan, LLC, New York, N.Y. (Alexander D. Fisher of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Nassau County (McCarty, J.), entered November 30, 2007, which denied his motionfor leave to enter a default judgment against the defendants Cristino Mateogarcia and Superior LaundryServices, LLC, upon their failure to appear or answer the complaint, and granted the cross motion ofthose defendants to extend the time to answer the complaint and to compel him to accept a late answer.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for leave to enter adefault judgment against the defendants Cristino Mateogarcia and Superior Laundry Services, LLC, isgranted, and the cross motion of those defendants to extend the time to answer the complaint and tocompel the plaintiff to accept a late answer is denied.
To successfully oppose a motion for leave to enter a default judgment based upon a failure toappear or timely serve an answer, a defendant must demonstrate a reasonable excuse for the delay andthe existence of a meritorious defense (see CPLR 5015 [a] [1]; Miller v Ateres Shlomo, LLC, 49 AD3d612 [2008]; Giovanelli v Rivera, 23AD3d 616 [2005]; Mjahdi v Maguire,21 AD3d 1067 [2005]; Thompsonv Steuben Realty Corp., 18 AD3d 864, 865 [2005]; Dinstber v Fludd, 2 AD3d 670, 671 [2003]). Here, the defaultingdefendants failed to demonstrate that they had a meritorious defense to the action. The defendants [*2]submitted a proposed answer, which was verified only by their attorney,who had no personal knowledge of the facts (see Salch v Paratore, 60 NY2d 851 [1983]; Bekker v Fleischman, 35 AD3d 334[2006]; Juseinoski v Board of Educ. of Cityof N.Y., 15 AD3d 353 [2005]), and an affidavit of a principal of the defendant SuperiorLaundry, LLC, who likewise had no personal knowledge of the facts. These submissions wereinsufficient to demonstrate a potentially meritorious defense. The police accident report referable to theincident upon which this action is premised was also insufficient to establish a meritorious defense, sinceit failed to indicate the source of the reporting officer's information concerning the accident (see Noakes v Rosa, 54 AD3d 317[2008]; Almestica v Colon, 304 AD2d 508 [2003]; Coughlin v Bartnick, 293 AD2d509 [2002]; Figueroa v Luna, 281 AD2d 204 [2001]). Spolzino, J.P., Santucci, Miller,Dickerson and Eng, JJ., concur.