Ogman v. Mastrantonio Catering, Inc.

• Decision Date: 08 March 2011
• Citation: 918 N.Y.S.2d 375,82 A.D.3d 852
• Parties: STEPHANIE OGMAN, etc., et al., appellants, v. MASTRANTONIO CATERING, INC., respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 375 82 A.D.3d 852 STEPHANIE OGMAN, etc., et al., appellants, v. MASTRANTONIO CATERING, INC., respondent. Supreme Court, Appellate Division, Second Department, New York. March 8, 2011.

Howard M. File, P.C., Staten Island, N.Y. (Martin Rubenstein of counsel), for appellants.

Bolan Jahnsen Dacey, Brooklyn, N.Y. (Todd E. Gilbert of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated March 16, 2010, as denied their motion for leave to enter a judgment on the issue of liability against the defendant upon its failure to appear or answer and granted the defendant's cross motion to compel them to accept a late answer.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiffs' motion for leave to enter a judgment on the issue of liability against the defendant is granted, and the defendant's cross motion to compel the plaintiffs to accept a late answer is denied.

In support of their motion for leave to enter a judgment on the issue of liability against the defendant upon its failure to appear or answer, the plaintiffs submitted their process server's affidavit of service, an affidavit of merit, and their attorney's affirmation regarding the defendant's default ( see CPLR 3215[f] ).

To successfully oppose the plaintiffs' motion and in support of its cross motion to compel the plaintiffs to accept the late answer, the defendant was required to demonstrate a justifiable excuse for its default and the existence of a potentially meritorious defense to the action ( see CPLR 5015[a][1]; May v. Hartsdale Manor Owners Corp., 73 A.D.3d 713, 900 N.Y.S.2d 359; Gross v. Kail, 70 A.D.3d 997, 998, 893 N.Y.S.2d 891; Leifer v. Pilgreen Corp., 62 A.D.3d 759, 760, 878 N.Y.S.2d 451; Kouzios v. Dery, 57 A.D.3d 949, 871 N.Y.S.2d 303). The affirmation of the defendant's president, which was submitted in an effort to demonstrate a reasonable excuse for the default and a potentially meritorious defense, was not in anauthorized form ( see CPLR 2309; Slavenburg Corp. v. Opus Apparel, 53 N.Y.2d 799, 801, 439 N.Y.S.2d 910, 422 N.E.2d 570 n; Martinez v D'Alessandro Custom Bldrs. & Demolition, Inc., 52 A.D.3d 786, 787, 861 N.Y.S.2d 737; Pampalone v. Giant Bldg. Maintenance, Inc., 17 A.D.3d 556, 557, 793 N.Y.S.2d 462; United Talmudical Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 A.D.2d 547, 548, 648 N.Y.S.2d 685). Furthermore, the affirmation of the defendant's attorney failed to demonstrate a reasonable excuse for the default in answering and for the lengthy delay in...