| Gross v Kail |
| 2010 NY Slip Op 01616 [70 AD3d 997] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Gerald P. Gross et al., Appellants, v Melanie Kail et al.,Respondents. |
—[*1] Hirschel Law Firm, P.C., Garden City, N.Y. (Daniel Hirschel of counsel), forrespondents.
In an action, inter alia, to declare that the plaintiffs are the owners by adverse possession ofcertain real property and to recover damages for trespass and conversion, the plaintiffs appealfrom an order of the Supreme Court, Nassau County (Feinman, J.), dated May 7, 2008, whichdenied their motion for leave to enter judgment against the defendants upon the defendants'default in appearing or answering and, in effect, granted the defendants' application, inter alia, todeem the proposed answer to have been served.
Ordered that on the Court's own motion, the appellants' notice of appeal is treated as anapplication for leave to appeal from so much of the order as granted the defendants' application,inter alia, to deem the proposed answer to have been served, and leave to appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, with costs, the plaintiffs' motion is granted,and the defendants' application is denied.
The Supreme Court erred in denying the plaintiffs' motion for leave to enter judgmentagainst the defendants upon their default in appearing or answering and, in effect, granting thedefendants' application, inter alia, to deem the proposed answer to have been served. In supportof their motion, the plaintiffs submitted their process server's affidavits of service of thesummonses and the complaints, a factually-detailed complaint verified by the plaintiff Gerald P.Gross, and an affirmation from attorney Mitchell J. Rich regarding the defendants' default inappearing and answering (see CPLR 3215 [f]).
In opposition to the plaintiffs' motion and in support of their application, inter alia, to deemthe proposed answer to have been served, the defendants were required to demonstrate areasonable excuse for the default and the existence of a meritorious defense (see CPLR5015 [a] [1]; Miller v Ateres Shlomo, LLC, 49 AD3d 612, 613 [2008]; Lipp v PortAuth. of N.Y. & N.J., 34 AD3d 649 [2006]; [*2]Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353,356 [2005]; Curran v Graf, 13 AD3d 409 [2004]; Ennis v Lema, 305 AD2d 632,633 [2003]). The defendants failed to provide any excuse for their default and failed todemonstrate that they had a meritorious defense to the action. The defendants submitted aproposed answer verified only by their attorney, who had no personal knowledge of the facts(see Baldwin v Mateogarcia, 57 AD3d 594, 595 [2008]; Bekker v Fleischman,35 AD3d 334, 335 [2006]; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556,557 [2005]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d at 356). Accordingly,the plaintiffs' motion should have been granted and the defendants' application should have beendenied. Skelos, J.P., Covello, Eng, Chambers and Sgroi, JJ., concur.