Thattil v. Mondesir

253 A.D.2d 809, 677 N.Y.S.2d 513, 1998 N.Y. App. Div. LEXIS 9565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Goldstein, J.), dated July 10, 1997, which denied that branch of his motion which was for leave to enter a judgment on the issue of liability against the defendant Franc Belizaire upon his failure to appear and answer the complaint.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion for leave to enter a judgment on the issue of liability against the defendant Franc Belizaire is granted.

In support of his motion for leave to enter a judgment on the issue of liability against the defendant Franc Belizaire upon his failure to appear and answer the complaint, the plaintiff submitted the complaint which was verified by the plaintiffs counsel, proof of service, and his affidavit (see, CPLR 3215 [f]; cf., Henriquez v Purins, 245 AD2d 337). The plaintiffs affidavit specifically adopted the complaint under penalties of perjury, and incorporated the allegations of the complaint by reference into the affidavit. Furthermore, the plaintiff in his affidavit stated that the contents of the complaint were true. Since the complaint set forth facts sufficient to establish a cause of action against the defendant Belizaire (cf., Feffer v Malpeso, 210 AD2d 60), we find that the Supreme Court erred in denying the plaintiffs motion for leave to enter a judgment on the issue of liability against the defendant Belizaire. O’Brien, J. P., Ritter, Thompson and Goldstein, JJ., concur.