Castillo v. Garzon-Ruiz
| Decision Date | 15 January 2002 |
| Parties | INES CASTILLO, an Infant, by Her Mother and Natural Guardian, ANGELA PENA, et al., Respondents,<BR>v.<BR>PEDRO R. GARZON-RUIZ et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Following service in late October 2000, plaintiffs advised defendants' insurance carrier to serve and file an answer on its insureds' behalf within 30 days or face a motion for judgment by default. When no response was forthcoming, plaintiffs applied, on December 13, 2000, for an order permitting them to proceed to inquest (CPLR 3215 [b]). By notice of cross motion dated January 22, 2001, defendants moved for an order compelling plaintiffs to accept service of the verified answer on behalf of defendants (CPLR 3012 [d]). By way of opposition, defendants' attorney submitted an affirmation stating that his law firm was not retained until December 27, 2000, on which date the firm had contacted plaintiffs' attorney seeking an extension of the time to answer. In support of the cross motion, defendants submitted the report of motor vehicle accident form submitted by the driver of defendants' vehicle, Pedro A. Garzon-Ruiz, to the New York State Department of Motor Vehicles (DMV). In granting plaintiffs' motion, Supreme Court noted that the report was inadmissible hearsay that does not constitute proof of a meritorious defense.
Defendants subsequently submitted a motion for renewal, stating that counsel had been unsuccessful in previously locating defendants at the address provided in the DMV accident report. With the renewal motion, defendants submitted an affidavit of merit from Pedro A. Garzon-Ruiz, as well as the police report of the accident, which reflects said defendant's new address. Notwithstanding this evidence, Supreme Court held that defendants had not provided an excuse for their default and denied the renewal motion. The court noted that defendants had failed to supply any explanation for the insurance carrier's lack of response to plaintiffs' notice of intention to move for a default judgment.
We would agree that defendants' submissions on the original motion were insufficient (Figueroa v Luna, 281 AD2d 204, 205 []). Even within the context of a motion to compel acceptance of the answer (CPLR 3012 [d]), it is within the discretion of the motion court to assess the sufficiency of the movant's submissions (Mufalli v Ford Motor Co., 105 AD2d 642, 643, citing ...
To continue reading
Request your trial
-
Accetta v. Simmons
...reasonable excuse for a default in answering lies “in the discretion of the court in the interests of justice” ( Castillo v. Garzon–Ruiz, 290 A.D.2d 288, 290, 736 N.Y.S.2d 37;seeCPLR 2005). Finally, we conclude that plaintiff failed to establish that she sustained any prejudice from the bri......
-
Li Xian v. Tat Lee Supplies, Co., Index No. 304347/09
...office failure, to permit consideration of the renewal motion on its merits, in the interest of justice (CPLR 2005; Castillo v. Garzon-Ruiz, 290 A.D.2d 288 [1st Dept. 2002]). Upon renewal, defendants submit a more in-depth affidavit of Mr. Kam, president of Tat Lee. With respect to reasonab......
-
Romero v. Alezeb Deli Grocery Inc.
...to defendant's insurance carrier constituted a reasonable excuse for defendant's failure to appear ( see Castillo v. Garzon–Ruiz, 290 A.D.2d 288, 290, 736 N.Y.S.2d 37 [1st Dept.2002] ). Moreover, the record shows that the insurance broker did not respond to telephone calls from plaintiff's ......
-
PIRS Capital, LLC v. Mentour Corp.
... ... is within the discretion of the Court to "assess the ... sufficiency of the … submission" (Castillo v ... Garzon-Ruiz, 290 A.D.2d 288, 290 [1st Dept 2002]). As ... the parties have not had an opportunity to be heard on § ... ...