Giordano v. Berisha
Decision Date | 20 November 2007 |
Docket Number | 2183N.,2182N. |
Citation | 845 N.Y.S.2d 327,45 A.D.3d 416,2007 NY Slip Op 09089 |
Parties | A. ROBERT GIORDANO, as Coexecutor of ARNOLD A. BRENHOUSE, Deceased, Appellant, v. DERVISH BERISHA, Respondent, et al., Defendant. |
Court | New York Supreme Court — Appellate Division |
The court initially denied plaintiff's motion for a default judgment and dismissed the complaint on the basis that the motion was not brought within one year after the individual defendant's default (CPLR 3215 [c]). Upon reargument, the court determined that plaintiff's motion was in fact timely, but denied the motion on the ground that plaintiff's submissions were insufficient to support entry of a default judgment pursuant to CPLR 3215 (f). This determination was correct inasmuch as plaintiff's motion papers, in this action where he is seeking monies allegedly due under a contract the decedent was assigned for heating oil deliveries and services provided to three buildings, failed to include the underlying contract and assignment, and the assignor's affidavit did not provide the particulars of the contract assigned to the decedent (see Feffer v Malpeso, 210 AD2d 60, 61 [1994]). However, under the circumstances presented, where plaintiff has actively pursued a resolution to the matter, plaintiff is granted leave to reapply for a default judgment, on proper papers, as indicated (Brown v Rosedale Nurseries, 259 AD2d 256, 257 [1999]).
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