Opinion
2018–08505 Index No. 69904/17
09-16-2020
David MALDONADO, appellant, v. Jonathan A. MOSQUERA, defendant, City of Peekskill, et al., respondents.
Herschel Kulefsky (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant.
Herschel Kulefsky (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated June 13, 2018. The order denied the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendants City of Peekskill and City of Peekskill Police Department, directed the City of Peekskill and the City of Peekskill Police Department to serve an answer, and directed the plaintiff to accept their answer. ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendants City of Peekskill and City of Peekskill Police Department is granted.
The plaintiff, a pedestrian, allegedly was struck by a vehicle that was owned and operated by the defendant Jonathan A. Mosquera, who was operating the vehicle in the course of his employment with the defendants City of Peekskill and City of Peekskill Police Department (hereinafter together the Peekskill defendants). The plaintiff commenced this personal injury action against Mosquera and the Peekskill defendants by the filing of a summons and complaint that was served in December 2017.
By notice of motion dated March 14, 2018, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the Peekskill defendants based upon their failure to serve an answer. The Peekskill defendants opposed this motion, and requested leave to serve an answer. In the order appealed from, the Supreme Court denied the plaintiff's motion for leave to enter a default judgment, directed the Peekskill defendants to serve an answer, and directed the plaintiff to accept their answer. The plaintiff appeals.
"On a motion for leave to enter a default judgment pursuant to CPLR 3215, a plaintiff is required to submit proof of service of the summons and complaint, the facts constituting the cause of action, and the defendant's default in answering or appearing" ( Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1194, 55 N.Y.S.3d 400 ). Here, the plaintiff satisfied all of the requirements for demonstrating his entitlement to leave to enter a default judgment (see Zhuoya Luo v. Wensheng Wang, 176 A.D.3d 1016, 1017–1018, 111 N.Y.S.3d 27 ; Loughran v. Giannoti, 160 A.D.3d 709, 710, 75 N.Y.S.3d 214 ).
In order to successfully oppose a motion for leave to enter a default judgment, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action (see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 60, 970 N.Y.S.2d 260 ; cf. CPLR 5015[a][1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 ).
Here, the Peekskill defendants' conclusory explanation that their attorney misplaced the file and that the office was understaffed was insufficient to establish a reasonable excuse for the default (see Blythe v. BJ's Wholesale Club, Inc., 123 A.D.3d 1073, 1074, 997 N.Y.S.2d 635 ; Robinson v. New York City Tr. Auth., 203 A.D.2d 351, 351, 610 N.Y.S.2d 296 ). Since the Peekskill defendants failed to demonstrate a reasonable excuse for their default, this Court need not consider whether they proffered a potentially meritorious defense to the action (see Blythe v. BJ's Wholesale Club, Inc., 123 A.D.3d at 1074, 997 N.Y.S.2d 635 ; Kim v. S & M Caterers, Inc., 112 A.D.3d 581, 975 N.Y.S.2d 903 ).
Accordingly, the Supreme Court should have granted the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the Peekskill defendants.
MASTRO, J.P., ROMAN, MALTESE and BARROS, JJ., concur.