Baldwin v. Mateogarcia

57 A.D.3d 594, 869 N.Y.2d 217

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2008
• Status: Published

Opinion

To successfully oppose a motion for leave to enter a default judgment based upon a failure to appear or timely serve an answer, a defendant must demonstrate a reasonable excuse for the delay and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Miller v Ateres Shlomo, LLC, 49 AD3d 612 [2008]; Giovanelli v Rivera, 23 AD3d 616 [2005]; Mjahdi v Maguire, 21 AD3d 1067 [2005]; Thompson v Steuben Realty Corp., 18 AD3d 864, 865 [2005]; Dinstber v Fludd, 2 AD3d 670, 671 [2003]). Here, the defaulting defendants failed to demonstrate that they had a meritorious defense to the action. The defendants submitted a proposed answer, which was verified only by their attorney, who had no personal knowledge of the facts (see Salch v Paratore, 60 NY2d 851 [1983]; Bekker v Fleischman, 35 AD3d 334 [2006]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005]), and an affidavit of a principal of the defendant Superior Laundry, LLC, who likewise had no personal knowledge of the facts. These submissions were insufficient to demonstrate a potentially meritorious defense. The police accident report referable to the incident upon which this action is premised was also insufficient to establish a meritorious defense, since it failed to indicate the source of the reporting officer’s information concerning the accident (see Noakes v Rosa, 54 AD3d 317 [2008]; Almestica v Colon, 304 AD2d 508 [2003]; Coughlin v Bartnick, 293 AD2d 509 [2002]; Figueroa v Luna, 281 AD2d 204 [2001]). Spolzino, J.E, Santucci, Miller, Dickerson and Eng, JJ., concur.