| Loaiza v Guzman |
| 2013 NY Slip Op 07159 [111 AD3d 608] |
| November 6, 2013 |
| Appellate Division, Second Department |
| Alberto Loaiza et al., Appellants, v Rene Guzmanet al., Respondents. |
—[*1] Newman and Newman, LLP, Jamaica, N.Y. (Gregory J. Newman of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Queens County (Kitzes, J.), entered March 26, 2013, whichdenied their renewed motion for leave to enter judgment on the issue of liability againstthe defendants, upon their failure to appear or answer, and granted the defendants' crossmotion pursuant to CPLR 3012 (d) for leave to serve a late answer and to compel theplaintiffs to accept service of that answer.
Ordered that the order is reversed, on the law, with costs, the plaintiffs' renewedmotion for leave to enter judgment on the issue of liability against the defendants isgranted, and the defendants' cross motion for leave to serve a late answer and to compelthe plaintiffs to accept service of that answer is denied.
In support of their renewed motion for leave to enter a default judgment on the issueof liability against the defendants, the plaintiffs submitted proof of service of thesummons and complaint on each defendant, proof of the facts constituting their claims,and proof of the defendants' failure to answer or appear (see CPLR 3215 [f];Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]; Suk Min Oh v Hon VoonChung, 107 AD3d 975, 976 [2013]; Karalis v New Dimensions HR, Inc., 105 AD3d 707, 708[2013]).
In opposition to the plaintiffs' renewed motion, the defendants alleged that their firstnotice of this action was when they received the plaintiffs' renewed motion andcross-moved pursuant to CPLR 3012 (d) for leave to serve a late answer and to compelthe plaintiffs to accept service of that answer. The affidavits of the plaintiffs' processserver constituted prima facie evidence that the defendant Rene Guzman was validlyserved pursuant to CPLR 308 (1) and that the defendant William Guzman was validlyserved pursuant to CPLR 308 (2) (see Washington Mut. Bank v Holt, 71 AD3d 670 [2010];Wells Fargo Bank, NA vChaplin, 65 AD3d 588, 589 [2009]). The defendants did not deny receipt ofprocess or swear to detailed and specific facts to rebut the statements in the processserver's affidavits (see DeutscheBank Natl. Trust Co. v Jagroop, 104 AD3d 723, 724 [2013]; Prospect Park Mgt., LLC vBeatty, 73 AD3d 885, 886 [2010]; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d983 [2008]). Therefore, the defendants were not entitled to relief pursuant to CPLR[*2]5015 (a) (4). Furthermore, to the extent that thedefendants are arguing excusable default pursuant to CPLR 5015 (a) (1), the defendantsdid not demonstrate a reasonable excuse for their failures to answer and oppose theplaintiffs' initial motion for a default judgment, and for their delay of more than one yearin appearing in this action (seeCitimortgage, Inc. v Bustamante, 107 AD3d 752, 753 [2013]; Deutsche Bank Natl. Trust Co. vPietranico, 102 AD3d 724, 725 [2013]). Accordingly, the plaintiffs' motion forleave to enter a default judgment on the issue of liability against the defendants shouldhave been granted and the defendants' cross motion pursuant to CPLR 3012 (d) for leaveto serve a late answer and to compel the plaintiffs to accept service of that answer, shouldhave been denied (seeKolonkowski v Daily News, L.P., 94 AD3d 704, 706 [2012]; Leifer v Pilgreen Corp., 62AD3d 759, 760 [2009]). Skelos, J.P., Dickerson, Lott and Austin, JJ., concur.