| Ogman v Mastrantonio Catering, Inc. |
| 2011 NY Slip Op 01813 [82 AD3d 852] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Stephanie Ogman et al., Appellants, v MastrantonioCatering, Inc., Respondent. |
—[*1] Bolan Jahnsen Dacey, Brooklyn, N.Y. (Todd E. Gilbert of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Richmond County (McMahon, J.), dated March 16, 2010, asdenied their motion for leave to enter a judgment on the issue of liability against the defendantupon its failure to appear or answer and granted the defendant's cross motion to compel them toaccept a late answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, theplaintiffs' motion for leave to enter a judgment on the issue of liability against the defendant isgranted, and the defendant's cross motion to compel the plaintiffs to accept a late answer isdenied.
In support of their motion for leave to enter a judgment on the issue of liability against thedefendant upon its failure to appear or answer, the plaintiffs submitted their process server'saffidavit of service, an affidavit of merit, and their attorney's affirmation regarding thedefendant's default (see CPLR 3215 [f]).
To successfully oppose the plaintiffs' motion and in support of its cross motion to compel theplaintiffs to accept the late answer, the defendant was required to demonstrate a justifiable excusefor its default and the existence of a potentially meritorious defense to the action (seeCPLR 5015 [a] [1]; May vHartsdale Manor Owners Corp., 73 AD3d 713 [2010]; Gross v Kail, 70 AD3d 997, 998[2010]; Leifer v Pilgreen Corp., 62AD3d 759, 760 [2009]; Kouzios vDery, 57 AD3d 949 [2008]). The affirmation of the defendant's president, which wassubmitted in an effort to demonstrate a reasonable excuse for the default and a potentiallymeritorious defense, was not in an authorized form (see CPLR 2309; SlavenburgCorp. v Opus Apparel, 53 NY2d 799, 801 n [1981]; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 AD3d786, 787 [2008]; Pampalone vGiant Bldg. Maintenance, Inc., 17 AD3d 556, 557 [2005]; United TalmudicalAcademy of Kiryas Joel v Khal Bais Halevi Religious Corp., 232 AD2d 547, 548 [1996]).Furthermore, the affirmation of the defendant's attorney failed to demonstrate a reasonableexcuse for the default in answering and for the lengthy delay in cross-moving to compel theplaintiffs to accept the late answer (seeHolloman v City of New York, 52 AD3d 568, 569 [2008]; Miller v Ateres Shlomo, LLC, 49AD3d 612, 613 [2008]; Robinson v1068 [*2]Flatbush Realty, Inc., 10 AD3d 716 [2004]).Moreover, the defendant's proposed answer was verified only by its attorney, who had nopersonal knowledge of the facts (see Gross v Kail, 70 AD3d at 998; Baldwin v Mateogarcia, 57 AD3d594, 595 [2008]; Bekker vFleischman, 35 AD3d 334, 335 [2006]). Accordingly, the plaintiffs' motion should havebeen granted and the defendant's cross motion should have been denied. Rivera, J.P., Florio,Dickerson, Hall and Roman, JJ., concur.