Feffer v. Malpeso
| Decision Date | 08 December 1994 |
| Citation | 619 N.Y.S.2d 46,210 A.D.2d 60 |
| Parties | Sylvia FEFFER, Plaintiff-Respondent, v. Pasquale J. MALPESO, D.M.D., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and ROSENBERGER, ROSS, ASCH and TOM, JJ.
Orders of the Supreme Court, New York County (Karla Moskowitz, J.), both entered on or about March 28, 1994, which respectively denied defendant's motion to vacate his default in answering, and denied defendant's motion to vacate plaintiff's note of issue filed to obtain an inquest on the issue of damages, are unanimously reversed, on the law and facts and in the exercise of discretion, and the motions by defendant to vacate both the default and the inquest are granted, without prejudice to a new submission by plaintiff upon proper papers, with costs and disbursements payable by plaintiff.
Plaintiff brought this action for injuries which occurred due to the alleged malpractice of defendant dentist. After defendant's time to answer had expired, plaintiff moved for and was granted a default judgment. Thereafter, the IAS court denied defendant's motion to vacate his default and plaintiff's note of issue for an inquest on the basis that defendant did not have a reasonable excuse for his default and failed to show a meritorious defense to the action.
In support of her motion for default judgment, plaintiff submitted a complaint verified by counsel. We have previously held that a complaint verified by counsel amounts to no more than an attorney's affidavit and is insufficient to support entry of judgment pursuant to CPLR 3215 (Joosten v. Gale, 129 A.D.2d 531, 534, 514 N.Y.S.2d 729). Therefore, plaintiff's entry of default judgment was erroneous and must be deemed a nullity (see, Mullins v. DiLorenzo, 199 A.D.2d 218, 219-220, 606 N.Y.S.2d 161, citing, inter alia, Joosten v. Gale, supra, 129 A.D.2d at 534, 514 N.Y.S.2d 729). Further, plaintiff submitted no substantiation of the alleged malpractice, except through the complaint verified by her attorney, unsupported by any other form of documentary or testimonial evidence. ...
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