| DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co. |
| 2015 NY Slip Op 04087 [128 AD3d 760] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| DLJ Mortgage Capital, Inc.,Appellant, v United General Title Insurance Company et al.,Defendants. |
Locke Lord LLP, New York, N.Y. (Joseph N. Froehlich of counsel), forappellant.
In an action, inter alia, to impose an equitable mortgage upon real property, theplaintiff appeals (1) from an order of the Supreme Court, Queens County (Nahman, J.),dated December 18, 2012, which denied its unopposed motion pursuant to CPLR 3215for leave to enter judgment against the defendant Orrett Strachan upon that defendant'sfailure to appear or answer the complaint, (2) from an order of the same court (Lebowitz,J.), dated April 24, 2013, which denied its unopposed motion pursuant to CPLR 3215 forleave to enter judgment against the defendants Orrett Strachan and UM Capital, LLC,upon their failure to appear or answer the complaint, and (3), as limited by its brief, fromso much of an order of the same court (Lebowitz, J.), dated July 30, 2013, as denied thatbranch of its unopposed motion which was to extend the time to move pursuant to CPLR3215 for leave to enter judgment against the defendants Orrett Strachan and UM Capital,LLC, upon their failure to appear or answer the complaint.
Ordered that the orders dated December 18, 2012, and April 24, 2013, are affirmed,without costs or disbursements; and it is further,
Ordered that the order dated July 30, 2013, is affirmed insofar as appealed from,without costs or disbursements.
" 'A party's right to recover upon a defendant's failure to appear or answer isgoverned by CPLR 3215' " (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740 [2014],quoting Beaton v TransitFacility Corp., 14 AD3d 637, 637 [2005]; see Todd v Green, 122 AD3d 831, 831-832 [2014]). "Thus,a plaintiff moving for a default judgment against a defendant must submit proof ofservice of the summons and complaint, proof of the facts constituting the claim, andproof of the defaulting defendant's failure to appear or answer" (Todd v Green,122 AD3d at 832; see CPLR 3215 [f]; Triangle Props. # 2, LLC v Narang, 73 AD3d 1030, 1032[2010]).
In its order dated December 18, 2012, the Supreme Court properly denied theplaintiff's unopposed motion for leave to enter a default judgment against the defendantOrrett Strachan on the ground that the plaintiff failed to submit proof of service of thesummons and complaint with its motion.
In its order dated April 24, 2013, the Supreme Court also properly denied that branchof the plaintiff's second, unopposed motion which was for leave to enter a defaultjudgment against Strachan. The plaintiff failed to submit an affidavit of the factsconstituting the claim (see CPLR 3215 [f]). While a verified complaint may beused as the affidavit of the facts constituting the claim (see CPLR 3215 [f]), itmust contain evidentiary facts from one with personal knowledge (see TriangleProps. # 2, LLC v Narang, 73 AD3d at 1032; Blam v Netcher, 17 AD3d 495 [2005]). "[A] pleadingverified by an attorney pursuant to CPLR 3020 (d) (3) is insufficient to establish itsmerits" (Triangle Props. # 2, LLC v Narang, 73 AD3d at 1032; see Juseinoski v Board of Educ. ofCity of N.Y., 15 AD3d 353, 356 [2005]; Saks v New York City Health& Hosps. Corp., 302 AD2d 213 [2003]).
The Supreme Court also properly denied that branch of the plaintiff's second,unopposed motion which was for leave to enter a default judgment against the defendantUM Capital, LLC (hereinafter UM), since the plaintiff's motion was made more than oneyear after that defendant's default (see CPLR 3215 [c]), the plaintiff failed toproffer a reasonable excuse for its delay, and failed to show that the complaint waspotentially meritorious (seeSolano v Castro, 72 AD3d 932, 933 [2010]; Staples v Jeff Hunt Devs., Inc., 56 AD3d 459, 460 [2008];Mattera v Capric, 54 AD3d827, 828 [2008]; State St. Bank & Trust Co. v Francis, 284 AD2d 324,325 [2001]).
In its order dated July 30, 2013, the Supreme Court properly denied that branch ofthe plaintiff's third, unopposed motion which was to extend its time to move for leave toenter a default judgment against Strachan and UM, since the plaintiff again failed toproffer a reasonable excuse for its delay, and failed to show that the complaint waspotentially meritorious (see Solano v Castro, 72 AD3d at 933). Chambers, J.P.,Dickerson, LaSalle and Barros, JJ., concur.