Fiorino v. Yung Poon Yung

281 A.D.2d 513, 721 N.Y.S.2d 803, 2001 N.Y. App. Div. LEXIS 2591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated January 4, 2000, which denied her motion for leave to enter judgment against the defendant City of New York upon its default in answering the complaint and granted that defendant’s cross motion to extend its time to answer.

Ordered that the order is modified, by deleting the provision thereof granting the respondent’s cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

In support of her motion for leave to enter a default judgment against the defendant City of New York, the plaintiff failed to proffer either an adequate affidavit of the facts or a complaint verified by a party with personal knowledge of the facts, as required by CPLR 3215 (f) (see, Finnegan v Sheahan, 269 AD2d 491; Grainger v Wright, 274 AD2d 549; Henriquez v Purins, 245 AD2d 337). Thus, the Supreme Court properly denied the motion.

However, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the defendant’s cross motion to extend its time to answer the complaint. Ritter, J. P., Friedmann, H. Miller and Feuerstein, JJ., concur. [As amended by unpublished order entered June 25, 2001.]