St. Paul Fire & Marine Ins. Co. v. A.L. Eastmond & Sons, Inc.

• Decision Date: 25 November 1997
• Citation: 244 A.D.2d 294,664 N.Y.S.2d 448
• Court: New York Supreme Court — Appellate Division
• Parties: , 1997 N.Y. Slip Op. 10,195 ST. PAUL FIRE & MARINE INSURANCE COMPANY, as Subrogee of New York City School Construction Authority, Plaintiff-Appellant, v. A.L. EASTMOND & SONS, INC., et al., Defendants-Respondents, Gordon-Piatt, Inc., et al., Defendants.

Page 448

664 N.Y.S.2d 448

244 A.D.2d 294, 1997 N.Y. Slip Op. 10,195

ST. PAUL FIRE & MARINE INSURANCE COMPANY, as Subrogee of New York City School Construction Authority, Plaintiff-Appellant, v. A.L. EASTMOND & SONS, INC., et al., Defendants-Respondents, Gordon-Piatt, Inc., et al., Defendants.

Supreme Court, Appellate Division, First Department.

Nov. 25, 1997.

Michael S. Leavy, for Plaintiff-Appellant.

Steven H. Rosenfeld, Laura D. Flynn, for Defendants-Respondents.

Before MILONAS, J.P., and ROSENBEGER, RUBIN, WILLIAMS and COLABELLA, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about September 27, 1996, which denied plaintiff's motion for a default judgment and deemed defendants' answer timely served, unanimously affirmed, with costs.

The submission of plaintiff, as subrogee of its insured, in support of the application, was conclusory and based upon an attorney's representation to plaintiff subrogee, and thus utterly devoid of evidentiary value. Accordingly, plaintiff failed to satisfy the requirement of CPLR 3215(f) that a party seeking to enter a default judgment submit "some firsthand confirmation of the facts" (Joosten v. Gale, 129 A.D.2d 531, 535, 514 N.Y.S.2d 729; see also, Feffer v. Malpeso, 210 A.D.2d 60, 619 N.Y.S.2d 46). In these circumstances, it was a proper exercise of discretion to deem the answer served so that the action would be disposed of on the merits.