St. Paul Fire & Marine Insurance v. A.L. Eastmond & Sons, Inc.

244 A.D.2d 294, 664 N.Y.S.2d 448, 1997 N.Y. App. Div. LEXIS 11871

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about September 27, 1996, which denied plaintiffs motion for a default judgment and deemed defendants’ answer timely served, unanimously affirmed, with costs.

The submission of plaintiff, as subrogee of its insured, in support of the application, was conclusory and based upon an attorney’s representation to plaintiff subrogee, and thus utterly devoid of evidentiary value. Accordingly, plaintiff failed to satisfy the requirement of CPLR 3215 (f) that a party seeking to enter a default judgment submit “some firsthand confirmation of the facts” (Joosten v Gale, 129 AD2d 531, 535; see also, Feffer v Malpeso, 210 AD2d 60). In these circumstances, it was a proper exercise of discretion to deem the answer served so that the action would be disposed of on the merits. Concur— Milonas, J. P., Rosenberger, Rubin, Williams and Colabella, JJ.