Cary v. Cimino

• Decision Date: 08 May 2015
• Docket Number: 402 CA 14-01496
• Citation: 9 N.Y.S.3d 493,2015 N.Y. Slip Op. 03965,128 A.D.3d 1460
• Parties: Jeffrey P. CARY, Individually and as Father of Joan Cary, an Infant, Plaintiff–Respondent, v. Michael A. CIMINO and Dominick F. Cimino, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1460

9 N.Y.S.3d 493

2015 N.Y. Slip Op. 03965

Jeffrey P. CARY, Individually and as Father of Joan Cary, an Infant, Plaintiff–Respondent

v.Michael A. CIMINO and Dominick F. Cimino, Defendants–Appellants.

402 CA 14-01496

Supreme Court, Appellate Division, Fourth Department, New York.

May 8, 2015.

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.

OpinionMEMORANDUM:

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...