Peniston v. Epstein

Appellate Division of the Supreme Court of New York

Peniston v. Epstein

10 A.D.3d 450, 780 N.Y.S.2d 916, 2004 N.Y. App. Div. LEXIS 10373

Appellate Division of the Supreme Court of the State of New York·Decided August 23, 2004·Published·Cited by 7 cases

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (M. Garson, J), dated July 18, 2003, as denied their motion, in effect, for leave to enter a default judgment against the defendant- upon his failure to appear and answer, and compelled them to accept service of the defendant’s answer.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In support of their motion for leave to enter a default judgment against the defendant upon his failure to appear and answer, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CFLR 3215 (f) (see DeVivo v Sparago, 287 AD2d 535, 536 [2001]; Fiorino v Yung Poon Yung, 281 AD2d 513 [2001]; Grainger v Wright, 274 AD2d 549, 550 [2000]). Thus, the Supreme Court properly denied the motion and compelled the plaintiff to accept service of the defendant’s answer. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (M. Garson, J), dated July 18, 2003, as denied their motion, in effect, for leave to enter a default judgment against the defendant- upon his failure to appear and answer, and compelled them to accept service of the defendant’s answer.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In support of their motion for leave to enter a default judgment against the defendant upon his failure to appear and answer, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CFLR 3215 (f) (see DeVivo v Sparago, 287 AD2d 535, 536 [2001]; Fiorino v Yung Poon Yung, 281 AD2d 513 [2001]; Grainger v Wright, 274 AD2d 549, 550 [2000]). Thus, the Supreme Court properly denied the motion and compelled the plaintiff to accept service of the defendant’s answer. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.

Peniston v. Epstein, 10 A.D.3d 450, 780 N.Y.S.2d 916, 2004 N.Y. App. Div. LEXIS 10373 (N.Y. Ct. App. 2004).

Pincite

10 A.D.3d 450 (Peniston v. Epstein) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related