Figueroa v. Luna

• Decision Date: 08 March 2001
• Citation: Figueroa v. Luna, 721 N.Y.S.2d 635, 281 A.D.2d 204 (N.Y. App. Div. 2001)
• Parties: (A.D. 1 Dept. 2001) Jose Figueroa, et al., Plaintiffs-Appellants, V. Reynaldo Luna, et al., Defendants-Respondents. 3094N
• Court: New York Supreme Court — Appellate Division

Page 635

721 N.Y.S.2d 635 (A.D. 1 Dept. 2001)

Jose Figueroa, et al., Plaintiffs-Appellants,

V.

Reynaldo Luna, et al., Defendants-Respondents.

3094N

SUPREME COURT, APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT

March 8, 2001

Stuart H. Finkelstein, for plaintiffs-appellants,

Steven H. Cohen & Laurieann Walker, for defendants-respondents.

Rosenberger, J.P., Tom, Ellerin, Rubin, Buckley, JJ.

Order, Supreme Court, Bronx County(George Friedman, J.), entered December 29, 1999, which granted the respective motions by defendantsReynaldo Luna and Franklin Pujols and by defendantsAbulla Muthana and Abdulla M. Muthana to vacate an order granting judgment upon their default in appearance and directing the parties to proceed to inquest, and which deemed defendants' respective answers to the complaint timely, unanimously reversed, on the law, without costs, and the motions denied.

PlaintiffsJose Figueroa and Frederick Gladney sustained injury when the automobile in which they were riding, driven by Figueroa, was struck from behind by a vehicle owned by defendantReynaldo Luna and operated by defendantFranklin Pujols(the Luna defendants).The Luna vehicle was, in turn, struck by the automobile owned by defendantAbdulla M. Muthana and operated by defendantAbulla Muthana(the Muthana defendants).The complaint was served on April 6, 1999.In mid-June, upon defendants' failure to answer, plaintiffs brought a motion for a default judgment.The motion, which was originally returnable July 1 but which, due to a technical defect, was ultimately returnable July 19, 1999, culminated in an order granting plaintiffs judgment on default and directing them to proceed to inquest (CPLR 3215[a], [b]).In response to service of the order with notice of entry, defendant owners and operators of the respective vehicles separately moved, by way of orders to show cause dated August 31, 1999, to vacate their default, which motions were granted by Supreme Court in separate orders.Plaintiffs appeal, contending that defendants have failed to meet their burden of demonstrating a meritorious defense to the action.

We agree.The motion by the Luna defendants was supported only by the affidavit of counsel, who does not purport to have personal knowledge of the circumstances surrounding the accident.While defendants do not specify the grounds for relief, it is settled that whether the motion is predicated on CPLR 317 or CPLR 5015, "a party must submit an affidavit from an individual with knowledge of the facts"(Peacock v Kalikow, 239 A.D.2d 188, 190).The accident report submitted in support of the application does not constitute competent evidence: "A police accident report made by a police officer who was not an eyewitness containing hearsay statements regarding the ultimate issues of fact may not be admitted into evidence for the purpose of establishing the cause of the accident in question"(Kajoshaj v Greenspan, 88 A.D.2d 538, 539, citingMurray v Donlan, 77 A.D.2d 337).

Held v Kaufman(91 N.Y.2d 425), on which the Luna defendants rely, is inapposite as it concerns a motion to dismiss a complaint pursuant to CPLR 3211 that was not converted to a motion for summary judgment(supra, at 433).The distinction between the two forms of motion is that "'CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal, as is the case under CPLR 3212'"(Rich v Lefkovits, 56 N.Y.2d 276, 282, quotingRovello v Orofino Realty Co., 40 N.Y.2d 633, 635).A motion for summary judgment requires the opposing party to "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action"(Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324[citingZuckerman v City of New York, 49 N.Y.2d 557]).The latter standard applies to a party seeking to vacate a default, who is required to submit "an affidavit, containing evidentiary facts, capable of being established at trial, by a person competent to attest to the meritorious nature of the action"(Rodriguez v Middle Atl. Auto Leasing, 122 A.D.2d 720,...