| Jacobsen v S & F Serv. Ctr. Co., Inc. |
| 2015 NY Slip Op 06418 [131 AD3d 450] |
| August 5, 2015 |
| Appellate Division, Second Department |
[*1]
| Elizabeth Jacobsen, Respondent, v S & FService Center Co., Inc., et al., Defendants, and 6351 Metropolitan Avenue, LLC,Appellant. |
Stephen D. Fink, Forest Hills, N.Y., for appellant.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York, N.Y. (VanessaCorchia and Harriet Wong of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant 6351Metropolitan Avenue, LLC, appeals, as limited by its brief, from so much of an order ofthe Supreme Court, Queens County (Lebowitz, J.), entered July 8, 2014, as granted thatbranch of the plaintiff's motion which was pursuant to CPLR 3215 for leave to enterjudgment on the issue of liability against it upon its failure to appear or answer thecomplaint and, in effect, denied its cross application for leave to serve a late answer.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as denied the cross application of the defendant 6351 Metropolitan Avenue, LLC,for leave to serve a late answer is deemed to be an application for leave to appeal fromthat portion of the order, and leave to appeal from that portion of the order is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law and in theexercise of discretion, that branch of the plaintiff's motion which was pursuant to CPLR3215 for leave to enter judgment on the issue of liability against the defendant 6351Metropolitan Avenue, LLC, is denied, and the cross application of the defendant 6351Metropolitan Avenue, LLC, for leave to serve a late answer is granted; and it isfurther,
Ordered that the time for the defendant 6351 Metropolitan Avenue, LLC, to serve ananswer is extended until 30 days after service upon it of a copy of this decision andorder; and it is further,
Ordered that one bill of costs is awarded to the defendant 6351 MetropolitanAvenue, LLC.
On January 28, 2011, the plaintiff allegedly was injured when she slipped and fell ona sidewalk in front of premises owned by the defendant 6351 Metropolitan Avenue, LLC(hereinafter the defendant LLC). The plaintiff commenced this action on November 15,2012, and served process upon the defendant LLC by delivering a copy of the summonsand complaint to the Secretary [*2]of State on November20, 2012. The defendant LLC did not appear or answer. On December 11, 2013, thedefendant LLC received a letter from the plaintiff's attorney advising it of thecommencement of this action, and that it was in default. By notice of motion datedDecember 16, 2013, the plaintiff moved, inter alia, for leave to enter judgment againstthe defendant LLC, submitting a copy of the summons and complaint, which wasverified by the plaintiff's attorney, and the plaintiff's affidavit.
The defendant LLC opposed the motion and sought leave to serve a late answer. Thedefendant LLC claimed, inter alia, that there was an old address on file with the Secretaryof State and that it was not aware of the commencement of this action prior to December11, 2013. It further claimed that, when it finally learned of this action, the principals ofthe defendant LLC, who resided out-of-state, notified the Secretary of State of theirchange of address on December 18, 2013. The defendant LLC further claimed that theplaintiff failed to establish facts constituting a viable cause of action, and noted that theowner of a codefendant corporation claimed that he saw the plaintiff fall not in front ofthe property of the defendant LLC, but on the sidewalk of the adjoining property. Theowner of the codefendant corporation submitted his own affidavit stating that he saw theplaintiff lying down on the sidewalk in front of the adjoining property.
In the order appealed from, the Supreme Court, inter alia, granted that branch of theplaintiff's motion which was for leave to enter judgment on the issue of liability againstthe defendant LLC, and denied the defendant LLC's cross application for leave to serve alate answer, on the ground that the defendant LLC failed to establish either a reasonableexcuse for the default or a potentially meritorious defense.
On her motion for leave to enter a default judgment pursuant to CPLR 3215, theplaintiff was required to submit proof of service of the summons and complaint, proof ofthe facts constituting the cause of action, and proof of the defendant LLC's default inanswering or appearing (see CPLR 3215 [f]; Oak Hollow Nursing Ctr. v Stumbo, 117 AD3d 698[2014]; Triangle Props. # 2,LLC v Narang, 73 AD3d 1030, 1032 [2010]). The plaintiff was required toallege enough facts to enable the court to determine that a viable cause of action exists(see Triangle Props. # 2, LLC v Narang, 73 AD3d at 1032). In her affidavit, theplaintiff stated merely that she "was caused to fall," without stating what caused her tofall. Since the plaintiff did not indicate what caused her to fall, she failed to allegeenough facts in her affidavit to enable the court to determine that a viable cause of actionexists (see Atlantic Cas. Ins. Co.v RJNJ Servs., Inc., 89 AD3d 649 [2011]; Fiorino v Yung Poon Yung,281 AD2d 513 [2001]; cf. Triangle Props. # 2, LLC v Narang, 73 AD3dat 1032). In addition, her complaint was verified only by her attorney, and not by a partywith personal knowledge of the facts. Therefore, the complaint, by itself, was insufficientto enable the court to determine that a viable cause of action exists (see Williams v North Shore LIJHealth Sys., 119 AD3d 937, 938 [2014]). Accordingly, that branch of theplaintiff's motion which was pursuant to CPLR 3215 for leave to enter judgment on theissue of liability against the defendant LLC should have been denied.
Further, under the circumstances of this case, since the defendant LLC did notreceive notice of the summons in time to defend, and a potentially meritorious defensewas established, the defendant LLC should have been granted leave to serve a lateanswer (see CPLR 317; Fried v Jacob Holding, Inc., 110 AD3d 56, 66 [2013]; Franklin v 172 Aububon Corp.,32 AD3d 454, 455 [2006]). Leventhal, J.P., Miller, Hinds-Radix and Maltese, JJ.,concur.