Parratta v. McAllister

283 A.D.2d 625, 725 N.Y.S.2d 854, 2001 N.Y. App. Div. LEXIS 5503

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated July 24, 2000, as denied their motion for leave to enter judgment against the defendants upon their respective defaults in answering the complaint and granted the defendants leave to serve late answers.

Ordered that the order is affirmed insofar as appealed from, with costs.

In support of their motion for leave to enter judgment against the defendants upon their respective defaults in answering the complaint, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (see, CPLR 3215 [f|; Fiorino v Yung Poon Yung, 281 AD2d 513). Therefore, the motion was properly denied. We have not considered the affidavit which was improperly submitted by the plaintiffs in their reply papers on the motion (see, McCullough v Maurer, 268 AD2d 569; Hirsch v Syrota, 253 AD2d 538; Russo v Automotive Rentals, 247 AD2d 603).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendants leave to serve late answers (see, Hermele v Sumkin, 282 AD2d 502). Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.