Gaviola v. City of New York

2025 NY Slip Op 00192

Opinion

Gaviola v City of New York (2025 NY Slip Op 00192)

Gaviola v City of New York

2025 NY Slip Op 00192

Decided on January 14, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 14, 2025
Before: Kern, J.P., Kennedy, González, Shulman, Rodriguez, JJ.

Index No. 159758/21 Appeal No. 3502 Case No. 2023-06792

[*1]Girlie Gaviola et al., Plaintiffs-Appellants,

v

The City of New York, et al., Defendants-Respondents.

Tanner & Ortega, LLP, New York (Hugo Ortega of counsel), for appellants.

Order, Supreme Court, New York County (Judy H. Kim, J.), entered on or about October 24, 2023, which, to the extent appealed from as limited by the briefs, upon reargument, adhered to a prior order denying plaintiff's motion for default judgment against defendant Mildred Antoine, unanimously affirmed, without costs.

We affirm the denial of plaintiff's motion for a default judgment. Plaintiff submitted proof that Antoine was personally served the summons with notice and submitted an attorney affirmation attesting to Antoine's default (see CPLR 3215[f]). However, plaintiff failed to submit an "affidavit made by" her containing "proof of the facts constituting the claim" (CPLR 3215[f]). Plaintiff relied on the allegations in her verified complaint, which was filed with the clerk of the court but not served on Antoine. Because CPLR 3215(f) permits reliance on a verified complaint as an affidavit of facts supporting default judgment only "[w]here a verified complaint has been served," plaintiff's motion for a default judgment was properly denied (see Mullins v DiLorenzo , 199 AD2d 218, 219-220 [1st Dept 1993]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 14, 2025