Opinion
402 CA 14-01496
05-08-2015
Jeffrey P. CARY, Individually and as Father of Joan Cary, an Infant, Plaintiff–Respondent, v. Michael A. CIMINO and Dominick F. Cimino, Defendants–Appellants.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place (Tamara M. Harbold of Counsel), for Defendants–Appellants. Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Plaintiff–Respondent.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place (Tamara M. Harbold of Counsel), for Defendants–Appellants.
Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, and SCONIERS, JJ.
Opinion
MEMORANDUM: Plaintiff, individually and on behalf of his daughter, commenced this action seeking damages for injuries his daughter sustained in an incident involving a vehicle operated by Michael A. Cimino (defendant) and owned by defendant Dominick F. Cimino. Plaintiff's daughter was standing on the sidewalk selling either cigarettes or marihuana to defendant in the vehicle, and was dragged alongside the vehicle when defendant drove forward during the transaction. Defendant pleaded guilty to reckless assault in the second degree in connection with the incident. As relevant to this appeal, plaintiff moved for a default judgment upon defendants' failure to serve a timely answer, and defendants moved to compel plaintiff to accept service of their answer. We conclude that Supreme Court abused its discretion in granting plaintiff's motion and denying defendants' motion, and we therefore reverse.
We agree with defendants that plaintiff failed to establish his entitlement to a default judgment. Plaintiff's submissions in support of his motion included, inter alia, his own affidavit and the complaint, but his affidavit did not demonstrate personal knowledge of the incident, and the complaint was not verified. We therefore conclude that plaintiff failed to submit adequate “proof of the facts constituting the claim” (CPLR 3215[f] ; see Williams v. North Shore LIJ Health Sys., 119 A.D.3d 937, 938, 989 N.Y.S.2d 887 ; Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 A.D.3d 649, 651, 932 N.Y.S.2d 109 ; see generally Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70–71, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ). We note that the affidavit of plaintiff's daughter, which was submitted with reply papers that also opposed a cross motion by defendants, could not be properly used to remedy the deficiencies in plaintiff's initial submissions (see Pittsford Plaza Co. LP v. TLC W., LLC, 45 A.D.3d 1272, 1274, 844 N.Y.S.2d 814 ; see also Givan v. Makin, 115 A.D.3d 1224, 1224, 982 N.Y.S.2d 633 ; Juseinoski v. Board of Educ. of City of N.Y., 15 A.D.3d 353, 355, 790 N.Y.S.2d 162 ).
Moreover, even assuming, arguendo, that plaintiff made a prima facie showing of entitlement to a default judgment, we agree with defendants that the court abused its discretion in granting plaintiff's motion and denying their motion. Defendants established a reasonable excuse for their default, which resulted from “the inadvertence of [their] liability insurer” (Accetta v. Simmons, 108 A.D.3d 1096, 1097, 969 N.Y.S.2d 339 ; see Hayes v. Maher & Son, 303 A.D.2d 1018, 1018, 756 N.Y.S.2d 811 ; Abramovich v. Harris, 227 A.D.2d 1000, 1000, 643 N.Y.S.2d 811 ), and further established the existence of a meritorious comparative negligence defense (see Steve Marchionda & Assoc. v. Maximum Express Delivery, 213 A.D.2d 1071, 1071–1072, 625 N.Y.S.2d 113 ; see also Strychalski v. Dailey, 65 A.D.3d 546, 547, 883 N.Y.S.2d 586 ; Captain v. Hamilton, 178 A.D.2d 938, 939, 579 N.Y.S.2d 249 ). “[G]iven the brief overall delay, the promptness with which defendant[s] [responded to plaintiff's motion], the lack of any intention on defendant[s'] part to abandon the action, plaintiff['s] failure to demonstrate any prejudice attributable to the delay, and the preference for resolving disputes on the merits” (Davidson v. Straight Line Contrs., Inc., 75 A.D.3d 1143, 1144–1145, 905 N.Y.S.2d 811 ), we conclude that defendants have established entitlement to their requested relief.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, plaintiff's motion is denied, defendants' motion to compel plaintiff to accept service of the answer is granted, and plaintiff is directed to accept service of the answer dated January 17, 2014.