| Loughran v Giannoti |
| 2018 NY Slip Op 02451 [160 AD3d 709] |
| April 11, 2018 |
| Appellate Division, Second Department |
[*1]
| Patricia Loughran, Individually and as Administrator of theEstate of Bryan Loughran, Deceased, Appellant, v Dominick J. Giannoti et al.,Respondents. |
Weitz & Luxenberg, P.C., New York, NY (David H. Green of counsel), forappellant.
Pillinger Miller Tarallo, LLP, Elmsford, NY (Raymond A. Cote of counsel), for respondentDominick J. Giannoti, and Connors & Connors, P.C., Staten Island, NY (Erik J. McKennaof counsel), for respondent Michael A. Casale (one brief filed).
In an action to recover damages for wrongful death, etc., the plaintiff appeals from an orderof the Supreme Court, Kings County (Kathy J. King, J.), dated August 10, 2016. The orderdenied the plaintiff's motion for leave to enter a default judgment against the defendants andgranted the defendants' cross motion to compel the plaintiff to accept their late answer.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for leave toenter a default judgment against the defendants is granted, and the defendants' cross motion tocompel the plaintiff to accept their late answer is denied.
On June 28, 2014, Bryan Loughran, a pedestrian, was struck by a vehicle operated by thedefendant Michael A. Casale and owned by the defendant Dominick J. Giannoti. Bryan Loughrandied from his injuries later that day. In November 2014, the plaintiff, Patricia Loughran, asadministrator of the estate of Bryan Loughran, deceased, and individually, commenced thisaction against the defendants. In September 2015, the plaintiff moved pursuant to CPLR 3215 forleave to enter a default judgment against the defendants based upon their failure to appear in theaction or answer the complaint. In October 2015, the defendants cross-moved to compel theplaintiff to accept their late answer. In the order appealed from, the Supreme Court denied theplaintiff's motion and granted the defendants' cross motion. The plaintiff appeals.
"On a motion for leave to enter judgment against a defendant for the failure to answer orappear, a plaintiff must submit proof of service of the summons and complaint, proof of the factsconstituting its claim, and proof of the defendant's default" (Triangle Props. #2, LLC v Narang, 73 AD3d 1030, 1032 [2010];see CPLR 3215 [f]; LibertyCounty Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785 [2015]; Atlantic Cas. Ins. Co. v RJNJ Servs.,Inc., 89 AD3d 649, 651 [2011]). "To demonstrate the facts constituting the cause ofaction, the plaintiff need only submit sufficient proof to enable a court to determine if the causeof action is viable" (Clarke v LibertyMut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]; see Woodson v Mendon LeasingCorp., 100 NY2d 62, 70-71 [2003]). Here, the plaintiff satisfied all of the requirements fordemonstrating her entitlement to enter a default judgment (see Jing Shan Chen v R & K 51 Realty, Inc., 148 AD3d 689,690 [2017]; Mercury Cas. Co. v SurgicalCtr. at Milburn, LLC, 65 AD3d 1102 [2009]).
[*2] To successfully oppose a facially adequate motion for leaveto enter a default judgment based on the failure to appear or timely serve an answer, a defendantmust demonstrate a reasonable excuse for its delay and the existence of a potentially meritoriousdefense (see Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d at 1195; Fried v Jacob Holding, Inc., 110 AD3d56, 60 [2013]). Similarly, "[t]o compel the plaintiff to accept an untimely answer as timely, adefendant must provide a reasonable excuse for the delay and demonstrate a potentiallymeritorious defense to the action" (Ryanv Breezy Point Coop., Inc., 76 AD3d 523, 524 [2010]; see CPLR 3012 [d];Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d at 1194; Mannino Dev., Inc. v Linares, 117AD3d 995, 995 [2014]; Juseinoskiv Board of Educ. of City of N.Y., 15 AD3d 353, 356-358 [2005]). Here, although thedefendants demonstrated a reasonable excuse for the delay in serving their answer (seeLehrman v Lake Katonah Club, 295 AD2d 322 [2002]), they failed to establish that they hada potentially meritorious defense to the action. The defendants submitted a proposed answerwhich was verified only by their attorney, and an affirmation from their attorney who did nothave personal knowledge of the facts. These documents were insufficient to demonstrate apotentially meritorious defense to the action (see State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med., P.C., 153AD3d 576, 577 [2017]; Ryan v Breezy Point Coop., Inc., 76 AD3d at 524).
The defendants' remaining contentions are either unpreserved for appellate review or withoutmerit.
Accordingly, the Supreme Court should have granted the plaintiff's motion for leave to entera default judgment against the defendants, and denied the defendants' cross motion to compel theplaintiff to accept their late answer. Rivera, J.P., Roman, Duffy and Connolly, JJ., concur.