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| Tri-State Consumer Ins. Co. v Brown |
| 2007 NY Slip Op 50582(U) [15 Misc 3d 1111(A)] |
| Decided on March 22, 2007 |
| District Court Of Nassau County, First District |
| Engel, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
District Court of Nassau County, First District
Tri-State Consumer Insurance Company a/s/o JOANNE CUNNINGHAM, Plaintiff,
against
Richard Brown, WE TRANSPORT and SALLY WEAVER, Defendants.
|
26774/06
Andrew M. Engel, J.
The Plaintiff moves, pursuant to CPLR § 3215, for the entry of a judgment of default against the Defendant, Richard Brown. None of the Defendants have opposed this motion. The Defendants, We Transport and Sally Weaver, cross-move for summary judgment and an order dismissing the Complaint against them.
This is a subrogation action which arises out of an automobile accident which occurred on December 14, 2005. The action was commenced on or about July 18, 2006. Service of the Summons and Complaint is alleged to have been made upon the Defendant, Richard Brown, pursuant to CPLR § 308(4), on August 16, 2006. Service is alleged to have been made upon the Defendants, We Transport and Sally Weaver, on July 25, 2006 and on July 27, 2006, respectively. Issue was joined with the Defendants, We Transport and Sally Weaver, on or about September 14, 2006. The Defendant, Richard Brown, has neither appeared nor answered herein.
THE PLAINTIFF'S MOTION
In support of its motion, the Plaintiff submits, inter alia, the affirmation of its attorney, an affidavit of an employee of the Plaintiff's regarding the property damage alleged herein, and a copy of the Complaint, verified by Plaintiff's Vice President. It is clear that the Plaintiff's Vice President has no personal knowledge concerning the liability of the Defendant, Richard Brown. Moreover, the only allegation in the Complaint concerning the alleged liability of this Defendant is the conclusory statement contained in paragraph 10 to the effect that, "Said accident was due to the negligence of the defendant, RICHARD BROWN, in the operation, control, ownership and maintenance of a 1997 Dodge, bearing New York State license plate number DJA9100 for the year 2005."
CPLR § 3215(f) provides, in part, "On any application for judgment by default, the applicant shall file ... proof of the facts constituting the claim ... by affidavit made by the party ..." Counsel's affirmation is insufficient for this purpose. Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 (2nd Dept. 1996); Mullins v. DiLorenzo, 199 AD2d 218, 606 NYS2d 161 (1st Dept. 1993).
CPLR § 3215(f) further provides, "Where a verified complaint has been served, it [*2]may be used as the affidavit of the facts constituting the claim ...." Nevertheless, "it does not follow that the trial court has a mandatory, ministerial duty to grant a motion for a default judgment upon every properly verified complaint-however deficient-upon which there has been a default (citations omitted)." Dyno v. Rose, 260 AD2d 694, 687 NYS2d 497 (3rd Dept. 1999); see also: Rivera v. Laporte, 120 Misc 2d 733, 466 NYS2d 606 (Sup. Ct. NY Co. 1983). To satisfy the requirements of CPLR § 3215(f) the verified complaint must, at a minimum, "allege enough facts to enable a court to determine that a viable cause of action exists (see 7 Weinstein-Korn-Miller, NY Civ. Prac. ¶ 3215.24, at 32-326)." Woodson v. Mendon Leasing Corporation, 100 NY2d 62, 760 NYS2d 727 (2003) A verified complaint which is conclusory in nature and fails to contain any factual allegations constituting the claim will not be sufficient. Luna v. Luna, 236 AD2d 470, 691 NYS2d 913 (2nd Dept. 1999); Dyno v. Rose, supra . Such is the complaint herein, which does nothing more than allege, via someone with no personal knowledge, that the Defendant, Richard Brown, was negligent, without providing "some first hand confirmation of the facts." Joosten v. Gale, 129 AD2d 531, 514 NYS2d 729 (1st Dept. 1987); see also: St. Paul Fire & Marine Insurance Company v. A.L. Eastmond & Sons, Inc., 244 AD2d 294, 664 NYS2d 448 (1st Dept. 1997)
Having failed to submit either an affidavit or a complaint verified by someone with personal knowledge of the facts constituting the claim, the Plaintiff's motion is denied, Peniston v. Epstein, 10 AD3d 450, 780 NYS2d 916 (2nd Dept. 2004); Goodman v. New York City Health & Hospitals Corporation, 2 AD3d 581, 768 NYS2d 365 (2nd Dept. 2003); Parratta v. McAllister, 283 AD2d 625, 725 NYS2d 854 (2nd Dept. 2001), with leave to renew upon proper papers. Henriquez v. Purins, 245 AD2d 337, 666 NYS2d 190 (2nd Dept. 1997); Matone v. Sycamore Realty Corp., 31 AD3d 721, 818 NYS2d 463 (2nd Dept. 2006); Blam v. Netcher, 17 AD3d 495, 793 NYS2d 464 (2nd Dept. 2005).
THE DEFENDANTS' CROSS-MOTION
Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movants must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980).
The Defendants, We Transport or Sally Weaver, have met their burden of establishing a prima facie right to summary judgment by submitting the affidavit of the Defendant, Sally Weaver, in which she avers that the vehicle she was operating, which was owned by the Defendant, We Transport, did not make contact with the Plaintiff's insured's vehicle. This allegation is uncontested. Moreover, the Plaintiff concedes that these Defendants were not responsible for the subject accident, alleging, "The accident was caused solely by the negligence of the defendant RICHARD BROWN ...." (Corigliano Affirmation 11/30/06, ¶ 4)
There being no issue of fact regarding the negligence of the Defendants, We Transport or Sally Weaver, the cross-motion of these Defendants is granted, and; it is hereby
ORDERED, that the Complaint against the Defendants, We Transport or Sally Weaver, is dismissed.
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All other matters not decided herein are hereby denied
This constitutes the decision and order of this court.
Dated: Hempstead, New York
March 22, 2007
___________________________
ANDREW M. ENGEL
J.D.C.