Louis Peniston v Mitchell Epstein

Peniston v Epstein 2004 NY Slip Op 06422 [10 AD3d 450] August 23, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 6, 2004

Louis Peniston et al., Appellants,
v
Mitchell Epstein, Respondent.

—[*1]In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated July 18, 2003, as denied their motion, in effect, for leave to enter a default judgment against the defendant upon his failure to appear and answer, and compelled them to accept service of the defendant's answer.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In support of their motion for leave to enter a default judgment against the defendant upon his failure to appear and answer, the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CPLR 3215 (f) (see DeVivo v Sparago, 287 AD2d 535, 536 [2001]; Fiorino v Yung Poon Yung, 281 AD2d 513 [2001]; Grainger v Wright, 274 AD2d 549, 550 [2000]). Thus, the Supreme Court properly denied the motion and compelled the plaintiff to accept service of the defendant's answer. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.