A.B. Med. Servs. v CNA Ins. Co.

[*1] A.B. Med. Servs. v CNA Ins. Co. 2004 NY Slip Op 50265(U) Decided on April 9, 2004 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-227 K C NO: 2003-227 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. ROYALTON CHIROPRACTIC P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Igor Kats, Leonid Kats, Appellants,

against

CNA INSURANCE COMPANY n/k/a ENCOMPASS INSURANCE, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (J. Sullivan, J.), entered December 2, 2002, which denied their motion for leave to enter a default judgment and granted defendant leave to serve and file a late answer.

Order modified by providing that the denial of plaintiffs' motion for leave to enter a default judgment is without prejudice to renewal upon proper papers and by striking the provision of the order which granted defendant leave to serve and file a late answer; as so modified, affirmed without costs.

Plaintiffs' motion for a default judgment was supported by an affidavit which, while it identified one person as the affiant, was signed by a different person. Inasmuch as it is unknown if the signer was sworn and if the signer possessed personal knowledge of the facts set forth in the affidavit, the affidavit was worthless (see generally Ambulatory Surgery Ctr. of Brooklyn v Helpers of God's Precious Infants, 283 AD2d 528, 529-530 [2001]) and, thus, it was not a proper vehicle to establish that the exhibits annexed thereto constituted evidence in admissible form. As a result, plaintiffs' motion for leave to enter a default judgment was properly denied (see CPLR 3215 [f]; DeVivo v Sparago, 287 AD2d 535 [2001]).

While defendant claims to have a meritorious defense, mere supposition as to fraud allegedly perpetrated by plaintiffs' assignors is insufficient (see CPLR 3016 [b]; Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]; Metral v Horn, 213 AD2d 524 [1995]; Williams v Upjohn Health Care Servs., 119 AD2d 817, 819-820 [1986]). Although defendant conducted examinations under oath of plaintiffs' assignors, the testimony adduced therein does not establish that they committed fraud. Inasmuch as defendant offered no evidence that it interviewed the driver of the vehicle that struck the vehicle within which plaintiffs' assignors were riding, or otherwise conducted an
investigation which revealed evidence of fraud, the record does not establish that defendant possessed a meritorious defense. Thus, defendant is not entitled to be
excused from the consequences of its failure to timely serve an answer (see Grainger v Wright, 274 AD2d 549 [2000]; Henriquez v Purins, 245 AD2d 337 [1997]). Inasmuch as plaintiffs' motion for leave to enter a default judgment was denied, plaintiffs are granted
leave to renew their application for leave to enter a default judgment against defendant on proper papers (see Grainger, 274 AD2d 549; Henriquez, 245 AD2d 337; cf. Bass v Wexler, 277 AD2d 266 [2000]).

Aronin, J.P. and Rios, J., concur.

Patterson, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
A.B. MEDICAL SERVICES PLLC
D.A.V. CHIROPRACTIC P.C.
DANIEL KIM'S ACUPUNCTURE P.C.
ROYALTON CHIROPRACTIC P.C.
SQUARE SYNAGOGUE TRANSPORTATION INC.
a/a/o Igor Kats, Leonid Kats,

Appellants,

-against-

CNA INSURANCE COMPANY
n/k/a ENCOMPASS INSURANCE,

Respondent.

Patterson, J. concurs in part and dissents in part in the following memorandum:

I agree with my colleagues' conclusion that plaintiffs were not entitled to an order granting them a default judgment because the affidavit submitted by plaintiffs was woefully inadequate. However, I do not agree with their decision to deny plaintiffs' motion without prejudice. Moreover, in my opinion, in view of the absence of any prejudice to plaintiffs, the existence of a possibly meritorious defense, the fact that defendant's default was inadvertent and the public policy which favors resolution of cases upon their merits, the Civil Court providently exercised its discretion when it ordered plaintiffs to accept defendant's late answer (see Goodman v New York City Health & Hosps. Corp., 2 AD2d 581 [2003]; Drake v Drake, 296 AD2d 566 [2002]). As a result, I would affirm the order appealed from.
Decision Date: April 09, 2004