Parratta v. McAllister

• Decision Date: 29 May 2001
• Citation: 725 N.Y.S.2d 854,283 A.D.2d 625
• Parties: ROCCO PARRATTA et al., Appellants,<BR>v.<BR>WILLIAM McALLISTER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

283 A.D.2d 625

725 N.Y.S.2d 854

ROCCO PARRATTA et al., Appellants,

v.WILLIAM McALLISTER et al., Respondents.

Decided May 29, 2001.

Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

In support of their motion for leave to enter judgment against the defendants upon their respective defaults in answering the complaint, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (see, CPLR 3215 [f]; Fiorino v Yung Poon Yung, 281 AD2d 513). Therefore, the motion was properly denied. We have not considered the affidavit which was improperly submitted by the plaintiffs in their reply papers on the motion (see, McCullough v Maurer, 268 AD2d 569; Hirsch v Syrota, 253 AD2d 538; Russo v Automotive Rentals, 247 AD2d 603).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendants leave to serve late answers (see, Hermele v Sumkin, 282 AD2d 502).