| King v King |
| 2012 NY Slip Op 06584 [99 AD3d 672] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Sylvina King, Appellant, v Shana King,Respondent. |
—[*1] Harris, King & Fodera, New York, N.Y. (Eun K. Kim of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Spodek, J.), dated May 19, 2011, which denied her motion forleave to enter judgment on the issue of liability against the defendant upon the defendant's failureto appear or answer the complaint.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion for leaveto enter judgment on the issue of liability against the defendant upon the defendant's failure toappear or answer the complaint is granted.
The plaintiff demonstrated her entitlement to enter judgment against the defendant upon thedefendant's failure to appear or answer the complaint by submitting proof of service of thesummons and complaint upon the defendant, proof of a viable cause of action, and proof of thedefendant's failure to appear or answer (see CPLR 105 [u]; 3215 [f]; Woodson vMendon Leasing Corp., 100 NY2d 62, 70 [2003]; A & J Concrete Corp. v Arker, 54NY2d 870, 872 [1981]; Triangle Props.# 2, LLC v Narang, 73 AD3d 1030, 1032 [2010]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102[2009]).
To avoid the entry of a default judgment, the defendant was required to demonstrate areasonable excuse for her default and a potentially meritorious defense to the action (seeCPLR 5015 [a] [1]; Swedbank, AB,N.Y. Branch v Hale Ave. Borrower, LLC, 89 AD3d 922 [2011]; Ogman v Mastrantonio Catering, Inc.,82 AD3d 852, 853 [2011]; Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65AD3d at 1102; Baldwin vMateogarcia, 57 AD3d 594 [2008]).
The defendant failed to submit admissible evidence sufficient to demonstrate the existence ofa potentially meritorious defense based upon the plaintiff's alleged fault in causing the caraccident at issue (see Thakurdyal v 341Scholes St., LLC, 50 AD3d 889, 890 [2008]; Figueroa v Luna, 281 AD2d 204,205 [2001]). While, in certain limited circumstances, a police report may be admissible intoevidence under the business records exception to the hearsay rule (see Bailey v Reid, 82 AD3d 809,810 [2011]; Noakes v Rosa, 54AD3d 317, 318 [2008]), the statements in the report attributed to the defendant and [*2]the plaintiff were not admissible under the business records hearsayexception because they were under no business duty to make such statements (see Cover vCohen, 61 NY2d 261, 274 [1984]; Johnson v Lutz, 253 NY 124, 128 [1930]; Carr v Burnwell Gas of Newark, Inc.,23 AD3d 998, 999 [2005]; Hatton v Gassler, 219 AD2d 697 [1995]). Furthermore,the statements were inadmissible, self-serving declarations, and did not meet the standards foradmissibility under any other exception to the hearsay rule (see Cover v Cohen, 61 NY2dat 274; Noakes v Rosa, 54 AD3d at 318; Hatton v Gassler, 219 AD2d at 697;Casey v Tierno, 127 AD2d 727, 728 [1987]). Moreover, the defendant's proposed answerwas not verified by a person with personal knowledge of the facts (see Ogman v MastrantonioCatering, Inc., 82 AD3d at 853; Gross v Kail, 70 AD3d 997, 998 [2010]; Pampalone v Giant Bldg. Maintenance,Inc., 17 AD3d 556, 557 [2005]). Further, the defendant did not demonstrate that she hada potentially meritorious defense that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d) (cf. Papandrea v Acevedo, 54 AD3d 915, 916 [2008]). Accordingly,in the absence of any admissible evidence sufficient to demonstrate the existence of a potentiallymeritorious defense, the plaintiff's motion for leave to enter judgment on the issue of liabilityagainst the defendant should have been granted (see HSBC Bank USA N.A. v Nuteh 72 Realty Corp., 70 AD3d998, 999-1000 [2010]). Angiolillo, J.P., Florio, Leventhal and Lott, JJ., concur.