Loaiza v. Guzman

• Decision Date: 06 November 2013
• Citation: 111 A.D.3d 608,2013 N.Y. Slip Op. 07159,974 N.Y.S.2d 282
• Parties: Alberto LOAIZA, et al., appellants, v. Rene GUZMAN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 608

974 N.Y.S.2d 282

2013 N.Y. Slip Op. 07159

Alberto LOAIZA, et al., appellants,

v.Rene GUZMAN, et al., respondents.

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

Nov. 6, 2013.

Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellants.

Newman and Newman, LLP, Jamaica, N.Y. (Gregory J. Newman of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered March 26, 2013, which denied their renewed motion for leave to enter judgment on the issue of liability against the defendants, upon their failure to appear or answer, and granted the defendants' cross motion pursuant to CPLR 3012(d) for leave to serve a late answer and to compel the plaintiffs to accept service of that answer.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' renewed motion for leave to enter judgment on the issue of liability against the defendants is granted, and the defendants' cross motion for leave to serve a late answer and to compel the plaintiffs to accept service of that answer is denied.

In support of their renewed motion for leave to enter a default judgment on the issue of liability against the defendants, the plaintiffs submitted proof of service of the summons and complaint on each defendant, proof of the facts constituting their claims, and proof of the defendants' failure to answer or appear ( seeCPLR 3215[f]; Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 70–71, 760 N.Y.S.2d 727, 790 N.E.2d 1156;Suk Min Oh v. Hon Voon Chung, 107 A.D.3d 975, 976, 966 N.Y.S.2d 890;Karalis v. New Dimensions HR, Inc., 105 A.D.3d 707, 708, 962 N.Y.S.2d 647).

In opposition to the plaintiffs' renewed motion, the defendants alleged that their first notice of this action was when they received the plaintiffs' renewed motion and cross-moved pursuant to CPLR 3012(d) for *283leave to serve a late answer and to compel the plaintiffs to accept service of that answer. The affidavits of the plaintiffs' process server constituted prima facie evidence that the defendant Rene Guzman was validly served pursuant to CPLR 308(1) and that the defendant William Guzman was validly served pursuant to CPLR 308(2) ( see Washington Mut. Bank v. Holt, 71 A.D.3d 670, 897 N.Y.S.2d 148;Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254). The defendants did not deny receipt of process or swear to detailed and specific facts to rebut the statements in the process server's affidavits ( see Deutsche Bank Natl. Trust Co. v. Jagroop, 104 A.D.3d 723, 724, 960 N.Y.S.2d 488;Prospect Park Mgt., LLC v. Beatty, 73 A.D.3d 885, 886, 900 N.Y.S.2d 433;Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d 983, 857 N.Y.S.2d 592). Therefore, the defendants were not entitled to relief pursuant to CPLR 5015(a)(4). Furthermore, to the extent that the defendants are arguing excusable default pursuant to CPLR 5015(a)(1), the...